Treasure Hunting Study. Final Report. Blackstone Corporation Resource Management & Tourism Consultants Inc. Stewart McKelvey

Transcription

1 Final Report Prepared for the Government of Nova Scotia Blackstone Corporation Resource Management & Tourism Consultants Inc. by in association with Stewart McKelvey February 2, 2009

2 TABLE OF CONTENTS EXECUTIVE SUMMARY 1.0 INTRODUCTION 1.1 Goals and Objectives Project Understanding and Context Approach and Methodology Report Structure OVERVIEW OF THE INSTITUTIONAL AND POLICY FRAMEWORK Federal Government Government of Nova Scotia Department of Natural Resources (DNR) Department of Tourism, Culture and Heritage Government of Nova Scotia Policy Directions Overarching Policies Heritage OVERVIEW OF LEGISLATIVE SITUATION WITH REGARD TO TREASURE 21 HUNTING IN NOVA SCOTIA TODAY 3.1 Nova Scotia Legislation and Regulations The Nova Scotia Treasure Trove Act The Nova Scotia Special Places Protection Act The Nova Scotia Environment Act Perceived Weaknesses in the Nova Scotia Legislative Regime Relevant National Legislation The Common Law Finds, Royal Prerogative and Treasure Trove The Law of Salvage Royal Prerogative, Salvage and Provincial Title to Abandoned Wrecks Jurisdictional Issues LESSONS LEARNED FROM OTHER JURISDICTIONS Canada Federal British Columbia New Brunswick Prince Edward Island Newfoundland and Labrador 45 2

3 4.1.6 Ontario Alberta United Kingdom The UK Treasure Act, The Merchant Shipping Act United States The Marine Protection, Research and Sanctuaries Act The United States Abandoned Shipwreck Act The Florida Historical Resources Act Massachusetts North Carolina Archives and History Act International Obligations UNESCO Convention on the Protection of Underwater Cultural Heritage Sovereign Immunity Summary of Some Legislative Lessons Learned of Possible Interest to Nova Scotia Some Non Legislative Lessons Learned of Possible Interest to Nova Scotia ISSUES SUMMARIES AND ANALYSIS Identification of Key Stakeholders Summary of Legislative and Jurisdictional Issues Discussion of Jurisdictional Issues Legislative Conflicts between TTA and SPPA Issues Related to Potential New Federal Regulations towards Adoption of UNESCO Underwater Cultural Heritage Convention Analysis of Different Salvaging/Permitting Models Situated Along a Continuum of Permitted Practices Canada, U.S.A., and U.K The UNESCO Convention Institutional Structure/Capacity Issues Staffing Organizational Structure Financial Resources Operational and Process Issues Lack of Clear Policy Directions and Priorities to Guide Marine Heritage 80 Management Processes Licensing and Permit Processes The Contract between Government 80 And Treasure Hunters Royalty Process Economics and Treasure Hunting Economics of Treasure Hunting Costs and Economic Benefits of Treasure Hunting Royalties Determination of Resource Significance 84 3

4 5.8 Underwater Cultural Heritage Sustainability Issues In Pursuit of Best Practice DESCRIPTION OF ALTERNATIVE SCENARIOS TO ADDRESS TREASURE HUNTING AND UCH IN NOVA SCOTIA Some Initial Conclusions Framing Alternative Scenarios Development Use vs. Non Use of Marine Heritage Resources: Alternative 91 Scenarios Along a Use/Non Use Continuum 7.0 EVALUATION OF ALTERNATIVE SCENARIOS TO ADDRESS TREASURE HUNTING IN NOVA SCOTIA Criteria for Evaluation Comparison of Alternative Scenarios Summary of Evaluation of Findings 106 ANNEXES: ANNEX A: CONTACTS 108 ANNEX B: REFERENCES 110 ANNEX C: EXAMPLE OF POSITION ADVERTISED FOR MARINE ARCHAEOLOGIST IN ONTARIO 118 ANNEX D: DETAILED EVALUATION OF LEGISLATIVE IMPLICATIONS OF THE THREE ALTERNATIVE SCENARIOS 121 4

5 1.0 INTRODUCTION 1.1 Goals and Objectives The overall goal of the present study has been to provide an objective and detailed analysis of the benefits and liabilities associated with treasure hunting activities in Nova Scotia and to provide the Government with some clear options for the future 1. The analysis includes identification and assessment of various alternative scenarios that may be able to more effectively address the issues and conflicts that exist today, within the context of the Government s current policy directions and in light of many of the lessons learned that are emerging in other jurisdictions. Specific objectives of the project were to: Undertake a targeted stakeholder consultation process to provide consideration of the views of the various interest groups; Provide a cogent legal analysis of national and international practice as regards treasure hunting; Develop actionable options that take into account overall costs and benefits, as well as institutional, legal, regulatory, policy and capacity building changes that would need to be a part of the solution; and Undertake the analysis in a manner that exhibits objectivity and the pursuit of fairness and equity. 1.2 Project Understanding and Context Nova Scotia s raw coastal geography and a seafaring history that saw its seas functioning as highways have produced a vast number of shipwrecks, perhaps in excess of 10,000. Some 5,000 wrecks have been recorded (the earliest from 1583) (see map Figure 1 1 on following page 2 ). While some are considered to have a high degree of historical importance, others are not 3. Excavation and recovery of the wrecks is illegal in Nova Scotia, although such activities are allowed where permissions have been given for specific types of excavation such as treasure hunting, as is the case in many other places in the world as discussed in this report. Such activities, can, however, be a very controversial subject among many various interest groups including government departments with different mandates, environmentalists, historians, conservation oriented and commercial archaeologists, sport divers, and salvors, among others. 1 While this report is focused mainly on underwater treasure hunting, where most of the activity is occurring, it is acknowledged that the legislation under discussion applies to treasure both underwater and on land. 2 Pringle, H Collections Unit Manager, September 3,

6 Figure 1 1: Recorded Shipwrecks Nova Scotia s Treasure Trove Act (TTA) is administered by the Department of Natural Resources (DNR) while the Special Places Protection Act (SPPA) is overseen by the Department of Tourism Culture and Heritage (TCH) (with respect to archaeological, historical and paleontological sites), and by the Department of the Environment (with respect to ecological sites). Under the TTA, finds from underwater treasure hunting are considered for their commercial value, with treasure described as any precious stones or metals in a state other than their natural state or any treasure or treasure trove. Under the SPPA, the definition of heritage to be protected includes an archaeological, historical or paleontological object or remain but does not include such an object to which the Treasure Trove Act applies, thus rendering the Act unable to protect treasure hunt finds that may be of great importance to the Province and to the country as a whole. Under the TTA, salvors are issued a renewable Treasure Trove License (TTL) that permits them to carry out exploration and recovery within defined areas for up to five years. Through an agreement with TCH, 6

7 most license holders 4 are required to retain the services of a professional marine archaeologist, who must obtain a Heritage Research Permit (HRP) as required under the SPPA. Inevitable conflicts arise, with the DNR deciding who has control over a site, while the TCH dictates how a site is to be managed, and by whom (the archaeologist). This is compounded by the fact that the archaeologist is paid by the TTL holder. In addition to the fact that objects falling under the TTA are largely unprotected as far as heritage value is concerned, many stakeholders with heritage interests (i.e., museums; archaeologists; marine heritage specialists) have raised the issue that explorations have significantly damaged or destroyed sites of historical importance. It is also of concern to some of these stakeholders that the TTA allows objectfocused recovery, whereby commercially valuable items are gathered for their mass appeal, and less appealing objects are left behind. If a more site focused approach were taken, they argue, other items that have been left behind by the treasure hunters may be of even more value/have more heritage interest if they were recovered with provenance/in context. On the other hand, it is argued by private sector salvors that many of the resources would likely go undiscovered unless there are incentives for salvors to explore and to reap some commercial value from the exploration and excavation of heritage resources. Several salvors, divers and geotechnical scientists have also noted that the underwater resources are subject to on going destructive forces such as currents, waves, and icebergs, among other things. In addition to these conflicting priorities embodied in the TTA and SPPA, and the government departments that oversee those them, a number of other issues need to be addressed, including the following: Operational issues: There are differences in the licensing and permitting terms that have implications for protection and effectiveness. In addition, other issues such as the assignment of royalties, monitoring of activities, etc., are subject to debate; Policy issues: Any new courses of action that may be proposed must be considered in light of existing policies of the Government of Nova Scotia. There is presently no policy specifically related to marine heritage or archaeology for Nova Scotia; Capacity/institutional issues: Solutions need to be evaluated in the context of institutional capacity to implement an improved legal/regulatory framework; Other legal issues: In addition to issues surrounding the TTA and SPPA, there are legal challenges regarding license and permit approvals as they relate to the larger, international legal obligations. There may be legal implications/risks related to implementation of various new options; 4 NOTE: There can be circumstances where a treasure hunter with a license does not require a permit under the SPPA, if it can be confirmed from TCH that an HRP is not required, such as when, for example, an area was already cleared through previous archaeological research. In such cases Special Places Programme staff could feel comfortable stating that a permit is not required related to a treasure trove license. 7

8 Stakeholder/Interest Group issues: The various interest groups (i.e., government; commercial explorers/salvors; historians; archaeologists [who include pure preservationists as well as contract/commercial professionals and others who see possibilities for some level of private sector activity]; and recreational divers) often express very different views about the subject under discussion, as discussed in subsequent report sections. Any changes to the status quo should consider fairness and equity principles; Perceptions of the public: There are issues related to the perception by the public of the degree of balance and fairness devoted to the resolution of the conflicting commercial/heritage values. Conservation oriented stakeholders have also noted that treasure hunting has been romanticized. As discussed later in this report, it is certainly true that a good deal of myth exists with regard to the subject under discussion, and education about many aspects is required to present the situation in an accurate manner. It is within this context that the goals and objectives of this project have been formulated, the methodology has been developed, and the analysis has been carried out. 1.3 Approach and Methodology Following from the goals of the assignment and the project context outlined above, the research has focused on the following main areas of investigation and analysis: Stakeholder identification and targeted consultation with a wide range of key informants and experts from outside Nova Scotia (see Annex A for contacts); A legal review and analysis, and an extensive literature review (see Annex B References); Detailed analysis of the issues; and Development/analysis of options regarding alternatives for action, including assessment of overall costs and benefits. 1.4 Report Structure This report is presented in the following sections: 2.0 Institutional Setting and Provincial Policy Related to Treasure Hunting 3.0 Overview of Legislative Situation with regard to Treasure Hunting in Nova Scotia 4.0 Lessons Learned from Other Jurisdictions 5.0 Issues Summaries and Analysis 6.0 Description of Alternative Scenarios to Address Treasure Hunting and UCH in Nova Scotia 7.0 Evaluation of Alternative Scenarios to Address Treasure Hunting and UCH in Nova Scotia. 8

9 2.0 OVERVIEW OF THE INSTITUTIONAL AND POLICY FRAMEWORK This section is not intended to be exhaustive, but rather to highlight the key national and provincial baseline institutional and policy frameworks for management and oversight of underwater activities such as underwater exploring or salvaging/treasure hunting. 2.1 Federal Government Figure 2 1, below, depicts the three Ministries of the Federal Government that are of most direct relevance to the discussion of treasure hunting in Nova Scotia. Each of these Ministries is discussed below: For years leading up to 2003, Parks Canada was within the Department of Canadian Heritage. However, in 2003 it became part of Environment Canada. At least one source has noted in the context of this move that, with the organizational shifts and political leadership in Canada, the priorities of Parks 9

10 Canada have shifted over the years more towards conservation and away from development. 5 stated mandate under the Parks Canada Charter is to: Its protect and present nationally significant examples of Canada's natural and cultural heritage, and foster public understanding, appreciation and enjoyment in ways that ensure the ecological and commemorative integrity of these places for present and future generations. 6 Parks Canada oversees archaeological and built heritage interests of the Federal Government. While the Federal Government can own sites of Canadian heritage, most are provincial or municipal. Like many other jurisdictions, including some specifically contacted for the purposes of this project (e.g., U.K., Massachusetts), Parks Canada has endorsed the principles of the International Council on Monuments and Sites (ICOMOS). The ICOMOS Charter on the Protection and Management of Underwater Cultural Heritage, as noted later in this report, seems to provide a set of useful principles, whether or not a jurisdiction signs onto the stricter and better known UNESCO (United Nations Education, Social and Cultural Organization) Convention on the Protection of Underwater Cultural Heritage (UCH Convention). (The Charter forms an Annex to UNESCO s UCH Convention.) While Canada has not signed onto the UNESCO UCH Convention to date, the Policy and Government Relations Branch of Parks Canada s National Historic Sites Directorate is currently overseeing the drafting of new regulations under the Canadian Shipping Act 2001 (CSA 2001) that could have an impact on Nova Scotia and its oversight of wrecks and that is seen as a necessary pre condition for signing onto UNESCO s UCH Convention. While the CSA 2001 is administered by Transport Canada, and a receiver of wreck (appointed under the act) oversees the salvage provisions of the CSA 2001 (See Section 3 of this report), a relatively new provision in the CSA 2001 permits Parks Canada to draft regulations pertaining to heritage wrecks. Section 163(2) was added to the Canadian Shipping Act when it was revised in 2001, and enables Parks Canada to make regulations: 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 responsible for the Parks Canada Agency 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; intrnet 10

11 Exempting any geographical area from the application of regulations made under paragraph (b) or (c); and Respecting the setting and payment of fees, and the determination and payment of expenses, for services provided in the administration of regulations made under this subsection. A source at Parks Canada s Policy and Government Relations Department indicated that: The new regulations are being prepared; The regulations may apply to all wrecks, no matter whose waters they might lie in; Canada is working towards signing onto UNESCO s Underwater Cultural Heritage Convention and the regulation will put Canada in a position of readiness ; The Draft Regulations should be completed by the end of March 2009; Following consultation with the provinces, the hope would be to complete the review process in less than a year s time. One Nova Scotia government representative noted that this may represent an overly optimistic view. As the regulations are being developed without any real consultation with the provinces, it is perceived that future consultations may prove to be contentious. Such regulations could create conditions for jurisdictional disputes over the disposition of wrecks found in waters considered by Nova Scotia to be within its territory. They could also create disputes regarding which wrecks fall under provincial and federal jurisdiction. (The Province could argue that the federal government s heritage wreck regulations could only apply to wrecks that present navigational or shipping hazards or that, in some other way, might fall under Parliament s legislative purview.) Parks Canada s Underwater Archaeological Programme (UAP) is a well funded programme that performs marine archaeological research. The Programme undertakes research of culturally and historically valuable underwater archaeological sites. It employs marine archaeologists and deploys teams to seek out and excavate shipwrecks of cultural and historic importance. As an archaeological program, the UAP is concerned solely with the study and preservation of the site and associated artifacts. Commercial exploitation is not part of its mandate. The research performed by the UAP is extensive and expensive. For example, while, a project completed by the UAP in Red Bay, Newfoundland, was described as the most comprehensive underwater archaeological research project ever undertaken in North America 7, it is considered by some to be a gold standard that will be difficult to repeat again due to the extreme expense, both in the short and long terms. It has been noted by some stakeholders that the research orientated UAP programme should not be directly compared with provincial efforts related to large scale cultural resource management, as there are major differences in regard to levels of practical experience, policies, procedures, etc., Canadian Heritage s Canadian Cultural Property Export Review Board (CPERB) controls the export of goods from Canada. The Act governing the Board contains a control list including eight categories. Group 1 applies to objects received from the soil or waters and relates to objects older than 75 years. 7 Mr. Norman Doyle, MP for St. John s East, quoted online in CNW Group News Wire story: /04/c2586.html 11

12 Anyone who wishes to export such an object of interest outside of Canada under the Act must obtain a permit. One of the questions that surround treasure hunting in Nova Scotia is the economic value of objects that are found and sold. According to a staff representative serving the Board (whom the Team asked about obtaining a list of underwater objects from Nova Scotia for which permit was granted, as a means to make some estimate of value): Our database is not at this time designed to capture information specific to a province or underwater shipwreck. Rather an object is linked to the group in the Canadian Cultural Property Export Control List (Control List) under which it falls. This means that, to provide the information you requested, thousands of entries linked to Group I of the Control List (Objects Recovered from the Soil or Waters of Canada) would have to be verified individually to determine whether the object relates specifically to underwater archaeology and then to a specific site, provided the applicant included these details in the application. 8 This has been stated as an area of concern by one Government of Nova Scotia representative, who noted that if CPEB cannot carry out these tasks, the province will certainly face challenges with regard to the monitoring of treasure objects recovered from wrecks. It was also noted that such objects values are not determined as part of the permitting process. 2.2 Government of Nova Scotia Figure 2 2, below, shows an abbreviated organizational chart for the two Departments that oversee the Treasure Trove Act (DNR) and the Special Places Protection Act (TCH, in regard to archaeological, historical and palaentological resources), as well as other interested government parties, such as the Treasury and Policy Board, and the Department of Intergovernmental Affairs. One of the main aims of the following overview of the roles and responsibilities of each agency of government is to highlight the inherent, and, in the long term, unsustainable differences in philosophy and intent between the two Acts that place the staff of the Departments overseeing the Acts, through no fault of their own, in conflicting situations: 8 Monica Belley, Programme Officer, Canadian Heritage: Movable Cultural Property Directorate. November 6 th . 12

13 2.2.1 Department of Natural Resources (DNR) The Department of Natural Resources (DNR) is responsible for administration of the Treasure Trove Act, which, as discussed in the legislation focused Section 3, is unique in North America, if not the world. The TTA, passed in 1954, focuses on regulating the activity of treasure hunting. The Act regulates the extraction of a non renewable resource similar to other natural resource based pursuits such as mining. DNR inherited oversight of a law that was intended to facilitate/address treasure hunting activities at Oak Island, and which grew to encompass underwater salvaging across the Province. Thus, through its Mineral Resources Division, DNR reviews applications for, and issues, Treasure Trove Licenses (TTL) to proponents who wish to engage in exploration and recovery of precious stones and metals in a state other than their natural state or any treasure or treasure trove 9. The licensing process was based on the existing mineral exploration licensing system to establish boundaries for each TTL, in the interests of regulating competing interests. Treasure Trove Licenses are obtained for a fee of some $500 subject to the applicant having, among other things, obtained a 9 General Guidelines for Treasure Trove Applicants Information Circular ME 61, Third Edition. Nova Scotia Natural Resources, Mineral Resources Branch, Registry of Mineral and Petroleum Titles, April

14 Heritage Research Permit (HRP), issued under the SPPA (see Section 2.2.2). The requirement that treasure hunters apply for a license under one Act, and permits under another, is entirely unique among the considerable body of legislation reviewed for this report (see Section 3). Given the uniqueness of the TTA itself though, this is hardly surprising. TTL s are valid for up to a five year period and are renewable. The licenses apply to areas rather than specific shipwreck sites. Some 10 to 20 licenses are issued per year, with some reports indicating that applications have been increasing in recent years. Most of the approximately 100 licensed TTL areas are clustered around the shores of parts of Cape Breton and in the Mahone Bay/Oak Island areas (see examples of some of the TTL areas on Figures 2 3 and , later in this Section) Department of Tourism, Culture and Heritage (TCH) The Department of Tourism, Culture and Heritage (TCH) is responsible, among other things, for administration of portions of the Special Places Protection Act (SPPA), with regard to archaeological, historical and palaeontological aspects. Specifically, the Special Places Protection office, within the Heritage Promotion and Development Section of the Department s Heritage Division issues Heritage Research Permits for exploration or excavation of land, including land covered by water, for the purpose of seeking archaeological, historical or paleontological sites and remains. The Collections Unit within the Museum Operation Section of the Division of Heritage has been given the task of selecting the 10% of any treasure finds that the Province chooses to retain. The curators also carry out a multitude of other related activities, including advising on issues, reviewing permit applications, research, and caring for the resulting collections. Under the heritage research permit guidelines 11, the treasure hunter/salvor is required to pay the costs of preserving the items that are recovered and included within the 10%. As discussed later, this situation creates problems, as such preservation costs can be sufficiently large as to provide a disincentive for salvors to bring items which would have high preservation costs to the surface and/or to light. There are three types of permits available, which are generally described below and outlined further on the government web site: Archaeological Reconnaissance (Category A) This permit is issued for an examination of a defined area to locate archaeological resources using methods that do not include disturbance of subsurface deposits, but may involve limited surface 10 Taken from DNR map of license areas 11 "Conservation of all archaeological objects recovered under permit is the responsibility of the permit holder, who shall: (a) ensure that the conservator assesses all archaeological objects recovered under permit in terms of conservation requirements; (b) provide the Museum with all examination records; and (c) provide the Museum with detailed treatment records." 14

15 collection. This permit limits applicants to examine an area on land or underwater with the objective of recording site or artifact locations without causing any disturbance to archaeological resources, other than a properly recorded, systematic and limited collection of resources exposed on the surface of the ground (Surface Collection) 12 Generally, this permit is relatively straightforward to acquire, and while applicants must be qualified to undertake the activity proposed, their qualifications can be significantly less than for Category B and C permits. Archaeological Research (Category B) This permit is for an examination of a defined area, including subsurface deposits, for the purpose of obtaining information on the archaeological resources located on, in or under the land, or underwater. It is required for an applicant to conduct test excavations or site excavation on land or underwater 13. This Permit can only be issued to qualified archaeologists, or students working under the supervision of a qualified archaeologist. Archaeological Resource Impact Assessment (Category C) This permit is required for an inventory and evaluation of archaeological resources, and assessment of impacts in connection with development proposals which will potentially disturb or alter the landscape, thereby endangering archaeological sites. It is required by an applicant who wishes to conduct monitoring, reconnaissance, survey, excavation or other pre development archaeological assessments on land or underwater 14, and requires the services of a qualified archaeologist. 2.3 Government of Nova Scotia Policy Directions Overarching Policies One of the objectives of the study process has been to consider the current policy environment in Nova Scotia, as one important `lens through which to assess options developed to address treasure huntingrelated issues. Two overarching policy frameworks are in place to guide the province towards its goal of sustainable prosperity, namely: Opportunities for Sustainable Prosperity 2006: An Updated Economic Growth Strategy for Nova Scotia; and Weaving the Threads: Our Framework for Social Prosperity. It is important to note that the policy framework in Nova Scotia is focused on sustainable competitiveness rather than the more widely used term sustainable development. The Nova Scotia 12 See: 13 See: 14 See: 15

16 concept goes beyond a focus on sustainability that reflects keeping in existence or maintaining and moves towards a more proactive focus that specifies a willingness to compete, to win. The policies also stress the need to protect and enhance the distinct quality of life that we cherish in Nova Scotia. There is also an explicit goal to use our resources wisely, and to create win win situations rather than simply seeking trade offs. The uniqueness of this policy approach is described specifically in Opportunities for Sustainable Prosperity 2006 as follows: Sustainable competitiveness, admittedly, represents a dramatic shift in thinking. The traditional view has always been that the human footprint is inevitably harmful, and therefore needs to be constrained by regulations. This new approach aims to develop an economy that enhances the social and natural systems that support its growth through the adoption of new and emerging technologies, good stewardship, and good design. 15 Section 6 of the Opportunities policy document identifies the Building Blocks of Productive Capacity, or the socio economic pillars of sustainable prosperity, as being: Financial capital, including conventional assets such as savings and investments. Money flows through our model and allows us to reinvest in our capacity and perform the transactions that drive economic growth; Natural capital, including natural resources, land, and ecosystems. This building block is fundamental. Its integrity must be preserved if prosperity is to be sustained; Built capital, including machinery, buildings, and infrastructure; Human capital, represented by the people of Nova Scotia, and the knowledge, skills, competencies, and attributes they possess; and Social capital, referring to the strength of relationships among people, companies, organizations, and government in a society. The policy frameworks do not explicitly address heritage resources or include a cultural pillar as is common in many other definitions of sustainable development (e.g., the federal government definition defines the pillars of sustainability as economic, social, environmental, and cultural) Heritage Discussions with stakeholders indicated that there is some confusion about whether Nova Scotia has any specific policy (i.e., formal statement outlining a course of action) in place with regard to its heritage resources. Some people, for example, cite the Voluntary Planning Heritage Strategy Task Force report, 15 Government of Nova Scotia. Opportunities for Sustainable Prosperity An Updated Economic Growth Strategy for Nova Scotia (2006) p

17 Our Heritage Future: A Shared Responsibility 16 as the province s guiding policy document. Others noted that while that document is not official policy there is some other policy in place. Discussions with the province s Treasury and Policy Board representatives, however, indicated that in fact there is no formal provincial policy for cultural heritage (outside of the two Acts that are in play with regard to the current study, namely the TTA and the SPPA 17 ). In December of 2006, the Voluntary Planning Heritage Strategy Task Force released its report following several months of consultations and community meetings. The Task Force acknowledged that it heard conflicting positions regarding underwater cultural resources, stating the following 18 : On the one hand, we heard from a few current and past treasure trove license holders that the Treasure Trove Act enables the recovery of treasure that would otherwise not likely be recovered and rewards the risk of searching and finding this otherwise lost material with the opportunity to retain part of what is discovered, with the public also benefitting...these companies invest in facilities, hire people and generate economic activity within the province. On the other hand, we heard from scientists, marine heritage experts, archaeologists, museum workers and representatives from various levels of government that many interesting sites have been significantly damaged or destroyed through human activity and that important sites are being excavated and significant artifacts sold onto the private market. The report s recommendations with regard to underwater cultural heritage were to: Repeal the Treasure Trove Act immediately and enhance the Special Places Protection Act to make it effective as a tool for designating and protecting Nova Scotia s underwater cultural; Enable exploration, discovery and possible recovery of resources by hiring a provincial marine archaeologist and providing sufficient resources to initiate an effective management programme; and Sponsor Nautical Archaeology Society training programmes for Nova Scotia s diving community, perhaps, in partnership with Parks Canada. It should be noted that while the Province s voluntary planning initiatives are viewed as a useful tool that contributes to policy making in the province, in the case of the heritage study the process has been questioned by several stakeholders with respect to the representativeness of its consultation process. Some of the salvage operators, for example, noted that they were not consulted during this process, or included in invite only sessions. As one senior government staff person noted: 16 Voluntary Planning Heritage Strategy Task Force. Our Heritage Future: A Shared Responsibility: Recommendations for Nova Scotia's Heritage Strategy: Interim Report of the Voluntary Planning Heritage Strategy Task Force (2006). 17 NOTE: It should also be noted that the province also has a Heritage Property Act, the Nova Scotia Museum Act, a Cemeteries Protection Act, and the Sherbrooke Village Commission Act, each of which deals with aspects of heritage resource management; 18 Our Heritage Future: A Shared Responsibility, Voluntary Planning Heritage Strategy Task Force, p

18 The voluntary planning process tends to attract people who are particularly interested in, and knowledgeable about, the subject under discussion. Some feel the heritage planning exercise was not representative. Others feel the report should have been adopted as policy. A Heritage Strategy (as opposed to policy ) has recently been adopted. This document, entitled: A Treasured Past, A Precious Future: A Heritage Strategy for Nova Scotia , was informed by the Voluntary Planning Process. The strategy focuses on three strategic directions, namely: Coordination of efforts: To better coordinate the efforts of those who share responsibility to preserve, protect, promote and present Nova Scotia s heritage; Development of sustainability: To improve the development and sustainable management of the full range of the province s significant heritage; and Increasing recognition: To increase public recognition of the value and relevance of the province s rich heritage. While no specific directions are included with regard to underwater heritage/marine resources, the three directions cited above are all relevant to improving the situation with regard to treasure hunting. 18

19 Figure 2 3: Examples of Treasure Trove License Areas in Cape Breton 19

20 Figure 2 4: Examples of TTLs in Mahone Bay/Oak Island Area 20

21 3.0 OVERVIEW OF LEGISLATION WITH REGARD TO TREASURE HUNTING IN NOVA SCOTIA In this Section, provincial and federal legislation affecting underwater cultural heritage and underwater exploration is described. (Legislation from other provincial and international jurisdictions follows, in Section 4.) 3.1 Nova Scotia Legislation and Regulations As noted above, Nova Scotia has two Acts that regulate treasure hunting and the exploration of submerged shipwrecks and other cultural heritage objects, namely: the Treasure Trove Act, R.S.N.S. 1989, c.477 ( TTA ); and the Special Places Protection Act., R.S.N.S. 1989, c.438 ( SPPA ). These two Acts were not designed to work with each other, but in practice have created a regime in which there is much interplay between them. For instance, no license will be issued under the Treasure Trove Act unless the applicant has also obtained a permit or permits under the Special Places Protection Act. 19 The two sections below outline the essence of both the TTA and the SPPA The Nova Scotia Treasure Trove Act The TTA as legislation is unique in North America. The statute is not focused on the nature of the resource being extracted (in this case, cultural heritage objects), but rather on regulating the extraction and ownership of the extracted goods. It does not provide for the protection or conservation of heritage resources. By contrast, all other legislation across North America dealing with shipwrecks, archaeological objects or sites, or other cultural resources embedded in the land, aims first and foremost to protect and conserve cultural heritage resources. It regulates the activities of individuals interested in exploring or excavating those resources pursuant to the protection and conservation objective. In this sense the legislation in other North American jurisdictions evokes concepts similar to the SPPA. (a) Operation of the TTA 19 As noted earlier, however, a permit may not be required in certain circumstances such as where an area has been cleared through a previous archaeological research permit or Special Places Program staff determine that no permit is required. 21

22 The TTA centers around the ministerial grant of a license that permits the license holder to search for and recover treasure within a defined area. Treasure is not defined in the Act, but the Act does refer to precious stones or metals in a state other than their natural state. 20 Section 3 of the Act states: The Governor in Council may from time to time by license under the hand of the Minister grant to any person the right to search in any part of the Province specified in the license for precious stones or metals in a state other than their natural state and to recover and retain the same upon the payment to the Minister of a royalty thereon at such rate as the Governor in Council may prescribe. Other provisions in the Act build upon this basic starting point in Section 3. They permit the Governor in Council to impose terms and conditions on a license (s.4), prohibit the transfer of a license (s.5), and provide that a license holder may enter on and search on Crown lands (s.8). Other sections provide for a process whereby a license holder may apply for a special license permitting that person to enter and search upon private lands within the license holder s territory (s.10). It is worth noting that there are no penalty provisions under the TTA, besides the government s power to cancel a license set out in s. 4.(2) (b) Key Points of Similarity/Divergence with Other Provincial Legislation Certain sections of the TTA are significant due to their divergence or similarity to common practice among other jurisdictions. Although sections of an Act must be read in context in order to gauge their meaning and effectiveness, the following sections can serve as a benchmark of sorts since they can be compared with other legislation: (i) Ownership of Treasure (s. 7): The TTA is one of the few pieces of legislation studied that permits the finder of treasure or cultural heritage objects to gain ownership over them. Under the TTA the license holder may keep most of what he/she finds upon payment of a royalty to the Minister. Section 7 states: The Minister may upon payment of a royalty at the rate prescribed by a license confirm to the holder of a license the right to retain for his own use and benefit any precious metals or stones in a state other than their natural state and any treasure and treasure trove discovered and recovered by him within the area covered by his license. All other legislation in Canada, with the exception of Ontario and Quebec, specifically state that title to archaeological artifacts vests in the provincial Crown. Even in Ontario, the government has the right to direct that archaeological objects be deposited with a museum or other public 20 Certain sections of the Treasure Trove Act refer to treasure and precious stones or metals in the same sentence, implying that these two terms have different meanings. This is possibly the result of poor legislative drafting and may not be an intentional distinction. 22

23 institution, or to seize objects in some cases. Quebec is the only other province besides Nova Scotia that provides for situations where the finder of a historic object can keep it. It should be noted that most embedded and abandoned archaeological objects found on Crown land belong to the Crown in any event, without a statutory ownership statement. The Crown has title to such embedded objects through the common law of finds, the Crown s royal prerogative, and the operation of section 109 of the Constitution Act (These concepts are discussed in greater detail below) However, these rights of the Crown arguably leave gaps where title to some abandoned historic objects found in private land may vest in the landowner. The statutes that explicitly grant title to all archaeological objects to the provincial Crown, without exception, erase any doubt. (The SPPA has such a title vesting statement, but creates an exception for objects found by TTA license holders.) The royalty provisions of the TTA that allow licence holders to gain title to some of what they find are in keeping with the legislation of a number of east coast states. These states have statutes that allow private entities to explore and excavate UCH sites, and to keep a portion of what they recover. These statutes will be examined in greater detail below. (ii) Duty to Report Finds (s. 6): The TTA provides for mandatory reporting by any person of a discovery of precious stones or metals in a state other than their natural state or any treasure or treasure trove. This section is similar to provisions contained in more conservation oriented legislation in other jurisdictions, both Canadian and international (e.g. the UK Treasure Act). Currently the mandatory reporting provision in the TTA, although similar to these other pieces of legislation, differs in its application. Mandatory reporting under the TTA does not aid in the preservation or conservation of cultural heritage objects. It instead allows the treasure resource to be more effectively regulated and exploited. By comparison, a similar mandatory reporting provision in the UK Treasure Act is meant to facilitate the protection of cultural heritage resources. The Treasure Act is part of a legislative and policy approach in the United Kingdom that depends on the voluntary reporting of finds of archaeological or cultural heritage objects such that they might be recorded and (in theory) better preserved. (The UK Treasure Act is more fully described in s , below). Regardless of whether the focus of the Nova Scotia approach to UCH includes treasure hunting, a mandatory reporting provision will be an essential part of the legislative regime. (iii) Royalties (s. 3, s. 7): If a salvor is successful in finding and recovering artifacts of note, royalties are then payable under the TTA to the Provincial Government. Although the TTA does not say so explicitly, the license holder pays royalties in kind to the government typically 10% of what the license holder recovers in a season. The license holder is then permitted to keep the other 90%. The ratio is typically set out in the TTL, and is not stipulated by the TTA or any 23

24 regulation. It can therefore be modified. However, this rate appears not to have changed over decades of practice.. The royalty provisions in the TTA are presumably intended to strike some balance between the public benefit and private benefit (i.e., commercial benefit) nature of the artifacts found by licensed treasure hunters. By retaining 10%, the province ensures that at least some of the archaeological resource (which is a public good) is preserved for the public. The royalties in Nova Scotia are paid to DNR, though TC&H curators actually select the items that will form part of the Province s 10%. Once the items have been selected, they are delivered to the Nova Scotia Museum.. This provision is unique among the domestic legislation that was studied in the course of this report. Certain American jurisdictions have statutes that provide for a division of ownership of recovered heritage objects between state and private parties, although the in kind royalty accorded to the state is typically more than Nova Scotia s 10%. (iv) Interaction with the SPPA: In order to explore and excavate both land and water sites, the treasure hunter or archaeologist must apply for licenses or permits under both the TTA and SPPA. The requirement that a treasure hunter or company apply for a license under one Act, while individual treasure hunters or archaeologists apply for permits under another Act, is entirely unique among the legislation reviewed for this report. Given the uniqueness of the TTA itself though, this is hardly surprising. As it stands, Nova Scotia has an extra layer of permitting that does not exist in other jurisdictions. This is due to the fact that Nova Scotia is the only jurisdiction that treats archaeological or heritage objects as a natural resource with commercial value. All other provinces have legislation that largely resembles the Nova Scotia Special Places Protection Act: a permit or license is required for archaeological or other exploratory or excavation activity. At times an impact assessment is required before such a permit can be issued. But generally speaking, one permit is required. There is no extra layer of licensing that provides exclusive rights to not only explore, but own and dispose of any objects found in an area. Currently in Nova Scotia, a would be treasure hunter must apply for a treasure trove license under the TTA, which lasts for five years and provides the applicant exclusive rights to explore a designated area. A license under the TTA will not be issued, however, unless the applicant has obtained the appropriate heritage research permit, issued under the SPPA (or received clearance from TC&H to proceed without a permit). Heritage research permits are granted on an annual basis. Different classes of heritage research permits enable an explorer or treasure hunter to search or excavate with varying levels of invasiveness, as described in the review of permit types, above. Without the requirement for permits under the SPPA there would be virtually no oversight of treasure hunting activity under the TTA. 24

25 The TTA and its underpinning philosophy are distinct in Canada. The comments above represent key areas where the TTA bears no resemblance to the statutory approaches taken by other provinces. The one exception is the mandatory reporting provision. As noted, a provision similar to this one in the TTA is widely used in other jurisdictions to help control the exploration, excavation and research that usually follow archaeological or historical discoveries The Nova Scotia Special Places Protection Act The Special Places Protection Act ( SPPA ) is similar in many respects to heritage conservation, historic resources or archeological sites protection acts found in other provinces. As its name suggests, the SPPA differs fundamentally from the TTA in that it is focused on protection of places and objects, rather than the regulation of resource extraction. The SPPA has as its stated object the protection of historically or archeologically valuable places and objects. The purpose section of the Act (s. 2) states that its purpose is to provide for the preservation, protection, regulation, exploration, excavation, acquisition and/or study of: archaeological remains; historical remains; paleontological sites; and ecological sites which are considered important parts of the natural or human heritage of the Province. The SPPA also aims to promote the understanding of Nova Scotians of the values represented by designated special places. The SPPA then sets out a number of mechanisms whereby the purposes of the Act can be accomplished. The primary mechanism is the designation of special places. Special places can be either protected sites or ecological sites. Section 7 permits the Minister (with the approval of the Governor in Council) to designate any land within the province as a protected site, if it is seen to have sufficient archaeological, historical or paleontological value. Similarly, s. 14 of the SPPA permits the Minister to designate land (including land covered with water), as an ecological site, under the auspices of the Ministry of the Environment. The SPPA then employs a combination of (a) a permitting system; and (b) prohibitions; to ensure protection of the designated protected and ecological sites, and the control of exploratory and excavation activity throughout the province on designated or non designated land. Permitting The permitting system is set out in sections 8 and 16. These sections provide for the issuance of heritage research permits and ecological research permits. 25

26 Heritage research permits are usually granted for specific areas, but are issued for both designated and non designated sites.. They are required for excavations or explorations on any land in the Province, including land covered with water. (s. 8) Section 8 requires that the permit holder be competent to perform heritage or ecological research and also that they submit a report to the Minister of Environment of the work performed. Ecological research permits are site specific. They are required for ecological research or other ecological activities within the designated ecological sites. (s. 16) Ecological research permits have requirements similar to heritage research permits that the permit holder be competent to conduct ecological research, and that the permit hold submit a report of the work performed within a specified period of time. Ownership of Objects Another significant component of the Act relates to ownership of heritage objects. The permitting section of the SPPA providing for heritage research permits states that the permit holder must deliver possession of all heritage objects recovered to the [Nova Scotia] Museum or to any other public institution which the Minister may designate, which objects become the property of the Province. (s. 8(d)) This section would create a conflict with the licensing provisions of the TTA were it not for the fact that under the SPPA heritage object does not include any object to which the TTA applies. For instance, the TTA states at s. 7: The Minister may upon payment of a royalty at the rate prescribed by a licence confirm to the holder of a licence the right to retain for his own use and benefit any precious metals or stones in a state other than their natural state and any treasure and treasure trove discovered and recovered by him within the area covered by his licence. (s. 7) The SPPA therefore creates a window for the treasure ownership provisions of the TTA to operate. Historical or archaeological objects found by a TTL holder, which would otherwise be required to be delivered to the province (and become property of the province) under the SPPA become property of the license holder under the TTA (subject to the 10% royalty, paid in kind). Prohibitions The prohibition elements of the SPPA provide that no person shall excavate or alter a protected site without a permit. It further provides that no person shall knowingly destroy or alter archaeological or historical remains or a paleontological site whether designated or not, unless they hold the appropriate permit. (s. 12) This last component adds a broader scope to the SPPA, and allows the Province to sanction those who knowingly damage historically valuable objects or land that the Minister has not yet designated as a protected site. 26

27 It should also be noted that this provision applies regardless of whether or not a person is the holder of a license under the TTA: Notwithstanding the issue of a licence pursuant to the Treasure Trove Act, no person shall (a) excavate or otherwise alter a protected site or remove any objects from a protected site unless he is the holder of a permit; (b) knowingly destroy, desecrate, deface or alter archaeological or historical remains or a paleontological site whether designated or not unless he holds a heritage research permit to excavate the specific site. (s. 12) A treasure trove license therefore does not enable a licensee to remove objects from a protected site without a permit. Once a treasure trove licensee has permission to explore, excavate and/or remove objects from a site, he or she will be able to keep some of what was found thanks to the window for TTA license holders created by s. 8 of the SPPA. Section 8 requires the delivery of heritage objects recovered by permit holders to the Nova Scotia Museum, but does not apply to treasure trove licensees: 8(d) the permit holder must deliver possession of all heritage objects recovered, while excavating pursuant to the heritage research permit, to the Museum or to any other public institution which the Minister may designate, which objects become the property of the Province. However, as noted above, the SPPA creates an exception for TTA licensees: 3(a) "heritage object" means an archaeological, historical or paleontological object or remain but does not include such an object to which the Treasure Trove Act applies; The Nova Scotia Environment Act The Nova Scotia Environment Act ( NSEA ) and associated regulations regulate activities and undertakings that may have an adverse effect on the environment. The NSEA and regulations could capture treasure hunting activity in cases where it might cause significant harm to the environment. However, it appears that the provincial government rarely, and perhaps never, requires an approval under the NSEA for treasure hunting. The NSEA states that an approval is necessary for certain designated activities: 50 (2) No person shall commence or continue any activity designated by the regulations as requiring an approval, unless that person holds the appropriate approval , c. 1, s. 50. Activities are designated in the Activities Designation Regulations, N.S. Reg. 47/95. Treasure hunting is not designated specifically as an activity, and is not caught by any of the specific sections of the 27

28 regulations. It could, in theory, be captured by the residual activity description in section 29 of the Regulations: 29(1) Any other activity or class of activity which the Minister believes on reasonable and probable grounds causes or will cause a significant adverse effect because of any one or more of the following circumstances: (b) The sensitivity of the site where the proposed activity is to be located; (d) the use of new technology in a proposed activity; or Treasure hunting or other forms of underwater exploration could conceivably require an approval under the NSEA if they take place on a sensitive site or use new technology. However, this would only be the case where the Minister believes on reasonable and probable grounds [that the activity] causes or will cause a significant adverse effect. It has not been the practice of the Department of Environment to date to require such approvals for licensed exploration and salvage under the TTA. Treasure hunting could also trigger the environmental assessment and approval provisions under the NSEA with respect to undertakings. But again, this does not appear to be current practice and is perhaps not necessary. Terms and conditions concerning environmental practice may be included in heritage research permits Perceived Weaknesses in the Nova Scotia Legislative Regime As can be noted from the above discussion, there are a number of weaknesses that are evident with regard to the current legislative regime: (a) Difficulties in the Administration of the Legislation and the Permit/License System Administration of the Treasure Trove Act and the Special Places Protection Act has been an increasingly frustrating process for the government departments involved. The two Acts are aimed at very different goals the SPPA for protecting and studying designated provincial sites and heritage objects, and the TTA for regulating treasure hunting activity. It is a struggle to reconcile the goals and the provisions of each Act. (b) Challenges Created by the Increase in Underwater Exploration and Excavation New technology has allowed treasure hunters and archaeologists to make new finds more quickly and with less expense. What was once prohibitive, difficult or expensive could become routine with technology such as side scanning radar, designer metal detectors, and space based remote sensing 28

29 equipment. 21 This is already making the exploration of shipwrecks a more attractive venture for private, academic and government programs. 22 As interest in exploring and excavating Nova Scotia s underwater cultural resources escalates, the inadequate regulation of these resources contained in the Treasure Trove Act and the Special Places Protection Act will become more pronounced. While there is significant protection for some areas, specifically designated sites under the SPPA, the SPPA is ill suited to protect cultural heritage contained in the debris fields under the ocean. Explicitly defining the nature of the UCH resources worthy of protection would resolve this problem (discussed in more detail below). (c) Insufficient Provision for Environmental Impacts of Underwater Exploration Neither the TTA nor the SPPA sufficiently addresses the potential harms to the natural environment that may occur during the course of underwater cultural exploration. The SPPA provides for the protection of special ecological sites that are deemed worthy of protection for their ecological value (s. 14), but it does not explicitly provide for the protection of the environment at protected sites that are designated due to their archaeological or historic value. Section 8 of the SPPA addresses heritage research permits. Adding a provision to s. 8 like the one allowing for environmental safeguards in s. 16(2) (d) of the SPPA (which deals with ecological sites) could be beneficial: 16 (1) The Minister, or a person authorized by the Minister, may issue ecological research permits authorizing ecological research or other ecological activities within the designated ecological sites. (2) Such permits so issued shall be subject to the following: (d) the permit may be made subject to such conditions as the Minister, or a person authorized by the Minister, may prescribe in order to protect the designated ecological site or some part thereof from any such proposed research or activities, and, if the lands are privately held, such research or activities must be carried on with the written consent of the landowner. The NSEA could theoretically be applied to underwater exploration (as discussed in s , above), but this is not current practice. This is likely for the best: adding the requirement of a NSEA approval would further confuse the permitting process for underwater exploration. The legislative regime would be clearer and more effective if the SPPA expressly referenced ecological factors that underwater explorers must consider, and made environmental sensitivity a precondition to the issuance of underwater research or exploration permits. 21 These are the new technologies identified by Leigh Daton in Titanic Tasks for Museums, Australian (Sydney, Australia) June at page 14, as quoted in Miller, Marian Leigh Underwater Cultural Heritage: Is the Titanic Still in Peril as Courts Battle over the Future of the Historic Vessel? (2006) 20 Emory International Review, (at page 346) 22 Such as the new technologies being employed to attempt to find and explore the Franklin ships in Canada s North. see Geiger, John Ottawa Mounts Search for Lost Franklin Ships, 29

30 (d) Inability to Effectively Balance Distribution of Private and Public Goods One way to frame the tension between commercial exploitation of underwater cultural heritage (UCH) resources, is in terms of balancing public and private goods. Academics studying in this area have noted that archaeological resources are simultaneously a public and private good. 23 They are a public good in the sense that they are a part of the history of civilization and a local culture, and the study and display of archaeological objects is of benefit to the public. UCH resources are a private good in the sense that they can be owned by an individual, and sold for the economic benefit of that individual. The government entities responsible for regulating UCH resources have finite resources. In this context, it makes sense for government regulators to attempt to optimize the value of both the private and public aspects of UCH resources through the policies that govern the development of these resources. Currently, however, the legislative scheme in Nova Scotia weighs heavily on the private good side of the equation. The TTA enables treasure hunters to mark out exclusive areas from which they are permitted to recover objects. Only 10% of the objects they recover are retained by the Province (and hence the public) for study or display. This system does not realize the significant public good that might be obtained from these UCH objects. Further, even when the TTA is combined with the SPPA, which requires heritage research permits and may help ensure that exploration is done prudently and in such a way that will protect the archaeological knowledge that may be obtained from UCH resources, it still appears that the legislative regime lacks rigor. There are few mechanisms in place to guarantee that the treasure hunters who have obtained heritage research permits are performing their archaeological research and reporting obligations at the appropriate level. Added to the lack of rigor in the legislation itself, insufficient resources to ensure compliance with the mechanisms that do exists may also pose a problem and undermine the protective provisions of the SPPA. The current legislative scheme does not effectively balance public and private goods available through the development of UCH resources. And currently, the weakness is in the lack of preservation and conservation of the UCH resources found on the seabed of Nova Scotian waters. (d) Conclusion Inadequacy of the Current Legislation In sum, the Treasure Trove Act and the Special Places Protection Act are unable to effectively protect Nova Scotia s UCH resources and environment. 23 Porter Hoagland, Managing the Underwater Cultural Resources of the China Seas: A Comparison of Public Policies in Mainland China and Taiwan, The International Journal of Marine and Coastal Law, vol. 12 No. 2, 1997, pp

31 As has been alluded to, much of this ineffectiveness stems from the conflicting purposes of the TTA and SPPA. In this case more legislation is not better. The SPPA alone is a robust statute that on paper compares favourably to the heritage protection legislation in other Canadian provinces. However, even the SPPA can be improved to better protect UCH resources. Few other provinces in Canada share the extent of Nova Scotia s coastline and its consequently rich maritime history. The heritage protection legislation in other provinces was not drafted with UCH as a primary consideration. Nova Scotia s SPPA can be modified to manage its rich underwater resources more effectively, and some examples of this are explored below in sections 4.5 ( Lessons Learned ) and 7.1 ( Legal Analysis and Options ). For instance, South Carolina s heritage legislation includes a definition of debris field, acknowledging the dispersed nature of archaeological objects on the ocean floor, and the archaeological significance of the field itself (regardless of the value of the objects forming the field). Also, as noted the SPPA currently does not address possible environmental harms from underwater cultural exploration. The SPPA can be improved in this respect as well. 3.2 Relevant National Legislation There is no federal legislation that addresses treasure hunting. This is the case for two reasons. First, as already noted in s above, the TTA treats treasure hunting as a resource recovery industry, and underwater cultural heritage objects as a natural resource. The federal government has not stated that it sees cultural heritage objects in the same light. It is therefore unlikely that the federal government would, if it were to pass legislation directly affecting those who hunt for or salvage treasure objects, frame this legislation in terms of resource recovery. Second, the federal government has limited jurisdiction to pass laws relating to mining or natural resources within the borders of Nova Scotia. The Constitution Act 1867 states that: 92A. (1) In each province, the legislature may exclusively make laws in relation to (a) Exploration for non renewable natural resources in the province; (b) development, conservation and management of non renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; A further provision in s. 109 of the Constitution Act 1867 also provides the province with ownership over lands, mines, minerals, and royalties within the province, providing the province, and not the federal government, with the jurisdiction to legislate over treasure within the province. The jurisdictional issues related to legislating in the area of treasure hunting or marine archaeological exploration are discussed in greater detail in s. 3.3 and 3.4 below. There are, however, federal statutes that impose obligations on all Canadians plying or exploring the shore or seabed of Nova Scotia, including licensed treasure hunters. With the exception of the Canada 31

32 Shipping Act, 2001, 24 which effectively codifies the common law of salvage for those who find wrecked ships, these statutes demonstrate a general approach of conservation and protection of the cultural and environmental resources within the jurisdiction of the federal government. Part V of the Canada Shipping Act, 2001: The CSA establishes the Federal Receiver of Wreck 25 and provides that: Any person who finds and takes possession of wreck in Canada, or who brings wreck into Canada, the owner of which is not known, shall report it to a receiver of wreck and provide the information and documents requested. 26 The CSA Provides a financial incentive to treasure hunters by providing for a salvage award for wrecks that are reported to the Receiver and either delivered to the Receiver or held in the salvor s possession as per the Receiver s instructions. 27 Canada National Marine Conservation Areas Act 28 : The CNMCAA is focused on protecting and promoting the health of marine ecosystems across Canada. It is an environmental protection statute, rather than a heritage protection statute. The CNMCAA, as its name suggests, uses a site based approach to protection. The Act provides for the creation of marine conservation areas that are then subject to use restrictions and standards for management. For instance, exploration for oil or minerals is restricted in marine conservation areas, as is disposal of any substance, except as authorized by permit. (ss. 13, 14) In terms of management, the Minister must prepare a management plan for the marine conservation area that includes a long term ecological vision for the marine conservation area and provision for ecosystem protection, human use, zoning, public awareness and performance evaluation, among other things. (ss. 9) The CNMCAA is an excellent example of site based protection with clear standards to ensure effective site management. Many of its provisions could be applied to cultural resource protection. Canada National Parks Act 29 : This Act provides for the creation of National Parks and their management. The Act further prohibits and regulates certain activities in National Parks. It operates on a site based protection model part VII (S.C. 2001, c. 26) 25 Canada Shipping Act, s Canada Shipping Act, s Canada Shipping Act, s. 156 Salvage Award 156. (1) A person who is referred to in subsection 155(1) and who has complied with that subsection is entitled to a salvage award determined by the receiver C , C

33 Canadian Environmental Assessment Act 30 : This Act demonstrates the federal government s commitment to promoting economic development that conserves and enhances environmental quality, through the regulation of projects that may impact the environment. The Act requires an environmental assessment (EA) prior to the approval of certain projects and undertakings. 31 Parks Canada Agency Act 32 : This Act establishes an oversight agency to: protect the nationally significant examples of Canada s natural and cultural heritage in national parks, national historic sites, national marine conservation areas and related heritage areas in view of their special role in the lives of Canadians and the fabric of the nation (Preamble, (a)) The Parks Canada Agency also exists to co ordinate protection activities in national parks, historic sites, marine conservation areas and related heritage areas, and to develop and deliver educational and public outreach programs The Common Law The common law plays a significant role in determining the rights and obligations of parties to wrecked vessels. This is especially the case in international waters where no state s legislation governs, but it is also true to a degree in Canadian (including provincial) waters. In Canada the common law of salvage is effectively codified in the Canada Shipping Act Further, common law rules relating to wreck, finds and treasure trove will apply to wrecks in the absence of any national or provincial legislation. The royal prerogative of the Crown, another common law doctrine, further serves as the legal source of provincial ownership over wrecks found within the province s territory Finds, Royal Prerogative and Treasure Trove In the absence of the TTA, the provincial Crown s right to unclaimed wreck and to treasure trove by virtue of royal prerogative, or the law of finds, would likely apply in Nova Scotia. 34 (a) Royal Prerogative In the United Kingdom, at common law by virtue of the royal prerogative, the Crown was entitled to all unclaimed wreck in the United Kingdom and United Kingdom waters. The royal prerogative, according to (S.C. 1992, c. 37) 31 Environmental Assessment Act, s (S.C. 1998, c. 31) 33 Specific sections have not been given as the Act is only a single page long. 34 There is, however, some dispute as to whether the royal prerogative of the provincial Crown would be recognized over that of the federal Crown. Recognizing the royal prerogative of the Provincial Crown to wreck could mean that the Canada Shipping Act 2001 is largely inapplicable in provincial waters. See Steven R. Yormak, Canadian Treasure: Law and Lore, Journal of Maritime Law and Commerce, vol. 30, No. 2, April,

34 Professor Peter Hogg, consists of the powers and privileges accorded by the common law to the Crown. 35 In Canada the prerogative of the Crown still exists as well, as it traditionally existed in the United Kingdom. The federal or provincial Crown, in the absence of legislation, would have title over all wreck in Canadian and provincial waters. The royal prerogative can, however, be limited or displaced by statute, in which case the statute governs. 36 In the United Kingdom, the royal prerogative to wreck ownership has effectively been codified in the Merchant Shipping Act, which provides at s. 241 that: Right of Crown to unclaimed wreck Her Majesty and Her Royal successors are entitled to all unclaimed wreck found in the United Kingdom or in United Kingdom waters except in places where Her Majesty or any of Her Royal predecessors has granted the right to any other person. In Canada, there is no similar or corresponding provision. This would appear to leave room for the continued operation of ownership of wreck by the Crown by virtue of the royal prerogative. It has been found in at least one case that the provincial Crown prerogative will operate to vest title to an abandoned wreck found in land under provincial waters in the provincial Crown. (See Ontario v. Mar Dive Corp., 1996 CarswellOnt 4888, at para 251, discussed further below) The Mar Dive case found that s. 109 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3. (U.K.), recognized the royal prerogative to wreck and granted this prerogative to the Crown in right of the province. As discussed below in s. 3.5, section 109 of the Constitution Act, 1867 provides Nova Scotia with ownership of land, minerals and royalty rights within the boundaries of the province, including submerged lands within its provincial territory. (b) Finds The common law of finds may also operate to vest title to abandoned wrecks in the Crown. Absent the existence of a known owner, or some other valid claim to ownership, the common law will assign title to a found object embedded in the soil to the owner of the land where the object is found. In addition to its finding of provincial ownership on the basis of royal prerogative, the Mar Dive case cited above found that the province was the owner of the abandoned wreck in question as a result of its ownership of the land in which the wreck was embedded. (c) Treasure Trove The common law doctrine of treasure trove provided that any gold or silver in coin, plate or bullion that was found deliberately concealed in a house, or in the earth or other private place, with the intention of recovery, the owner thereof being unknown, belonged to the Crown or a grantee having the franchise of treasure trove (Halsbury s Laws of England (4 th ), para 373) 35 Peter Hogg, Constitutional Law of Canada, 5 th ed., vol. 1 (Scarborough: Thompson/Carswell, 2007) at p Hogg, at p

35 This doctrine would apply in Canada where no statute otherwise assigned ownership of gold and silver found objects, if the elements of treasure trove were satisfied. Currently, the TTA and SPPA displace the law of treasure trove in Nova Scotia. Similarly, other provincial statutes that vest title to archaeological objects in the provincial Crown oust the operation of this doctrine The Law of Salvage The common law of salvage has developed over centuries, but was largely codified in the International Convention on Salvage, 1989, to which Canada is a party. Canada has also incorporated the 1989 Convention into the Canada Shipping Act 2001, at Schedule V. The law of salvage is based on the principle that a vessel s owner does not relinquish rights in the vessel when it sinks, irrespective of what maritime zone it sinks in. These rights are only relinquished when the vessel has been abandoned. If the vessel has not been explicitly or impliedly abandoned (even though it be wrecked), then a party able to salvage the vessel is entitled to a reward usually commensurate with the value of what has been recovered by the salvor. At common law and under the 1989 Convention, there are three elements that must be met for a salvage claim to be successful. First, the vessel must be in marine peril. This includes wrecks of ships that are already embedded in the ocean floor. Second, the salvor must be a volunteer that is, he must not have any prior legal obligation by contract, employment or ownership to recover the vessel or its cargo. Third, the salvor must be successful the old adage of no cure, no pay is often used to describe this requirement for salvage claims. Often potential salvors will enter into contracts with the owner of the vessel before undertaking salvage operations. If the vessel or wreck is abandoned, or its owner is unknown, then the salvor may be granted possession of the salvaged property by the receiver of wreck or the proceeds of its disposition, as provided for by Part VII of the Canada Shipping Act In the case Ontario v. Mar Dive Corp., 1996 CarswellOnt 4888, the court explained abandonment as it applies to shipwrecks: The common law concept of abandonment has also been applied to shipwrecks The passage of time, as well as absence of use, are circumstances to be taken into account in assessing whether abandonment has occurred. Abandonment can be found in circumstances where the true owner has not engaged in any salvage efforts over a prolonged period. (paras.33 34) An abandoned wreck, under the common law and the CSA 2001 should therefore result in either a salvage award to the salvor who recovers the wreck, or ownership of the wreck for the salvor. As described below, however, the common law and the CSA 2001 may technically speaking have 37 Note though that the receiver of wreck only has jurisdiction within Canadian territorial waters. Abandoned wrecks found on the high seas (international waters) will be governed by the common law of salvage and the 1989 Convention. 35

36 limited application to wrecks found in on provincial land. As the provincial Crown in Nova Scotia has ownership over wreck by virtue of the common law, any abandoned vessel will likely be found to be property of the Crown Royal Prerogative, Salvage and Provincial Title to Abandoned Wrecks Case law suggests that if an abandoned wreck is found on Crown land that is, on the bed of inland waters or other submerged land that can be said to be within the territory of a province then the wreck will likely be found to be the property of that province. However, due to the federal nature of Canada, there is an important interaction between the federal jurisdiction to legislate over certain wrecks, and ownership of wrecks. This has led to a federal provincial compromise in practice, whereby the law of salvage or at least the Canada Shipping Act, 2001 operates alongside the legal claims of the province to ownership of wreck within its territory. (a) Federal Legislative Jurisdiction: Marine and Admiralty Law The federal government has jurisdiction over admiralty and marine law. This includes the law of salvage. This federal jurisdiction to legislate will apply even within provincial boundaries (in the same way that the federal Criminal Code applies within Nova Scotia). In Brooks Aviation Inc. v. Boeing SB 17G Aircraft, 2004 FC 710, the court found at para 12 that the law of salvage is an aspect of traditional maritime law, a matter within the exclusive jurisdiction of Parliament in relation to navigation and shipping. The court further noted that this source of authority corresponds with the legislative competence provided to Parliament by s. 91(10) of the Constitution Act, 1867, which states that the exclusive Legislative Authority of the Parliament of Canada extends to Navigation and Shipping. The federal government has enacted the Canada Shipping Act, 2001 pursuant to its Constitutional authority under s. 91(10) of the Constitution Act, The CSA 2001 provides for the reporting of wreck and for the payment of salvage awards to salvors where no owner is found. (b) Provincial Ownership of Wrecks and Subsequent Authority to Legislate As already noted, the Crown in right of the province may be said to have ownership over all objects found within its territory, including abandoned wreck that sits on land covered by water. This ownership is the basis of the province s authority to legislate over wrecks, through such legislation as the TTA. However, practically speaking the finders of wreck even those licensed under the TTA will be required to report their finds to the receiver of wreck, as required by s. 155 of the CSA Although the province could, in theory, argue that the CSA 2001 does not apply to any wreck that is not a navigational hazard, the practice is to comply with the CSA 2001 in all cases. Once the wreck has been reported, the receiver of wreck will search for any true owner of the wreck. Once the wreck is found to be abandoned, the receiver of wreck will generally, as a matter of course, 36

37 find that the wreck is the property of the province, due to the operation of royal prerogative or the law of finds, and s. 109 of the Constitution Act, The case Ontario v. Mar Dive Corp., 1996 CarswellOnt 4888 is one of the few Canadian cases to have examined the issue of provincial ownership of wrecks. That case involved an action by American based salvors for the rights to the abandoned hull, and abandoned cargo and personal possessions of a wooden hulled paddle steamer called the Atlantic that sank in Lake Erie in The ship was embedded in the bottom of the lake at a depth of roughly 160 feet, and the court recognized that the site was located entirely within Canadian waters, in the Province of Ontario. The fact of abandonment of the vessel was disputed between the parties, but the court concluded that the ship was abandoned and cited the following definition in support of its conclusion: Abandonment occurs when there is a giving up, a total desertion, and absolute relinquishment of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property. (para 232) The court found that the actions of the ship owners were consistent with the abandonment of the ship: When the Atlantic sank on August 20, 1852, as a result of damage sustained from collision with another ship, she was abandoned by captain, crew and passengers. In my opinion, based on the evidence that I have heard the Ward family (the owners) abandoned the Atlantic after it sank. The owners of the Atlantic sued the ship with which it collided for the total loss of the Atlantic. Between 1852 and 1856, a number of persons dove on the Atlantic and the safe was removed without objection by the title holder. (para 235) The Province of Ontario asserted ownership over the abandoned vessel and its cargo. In its factum the Province stated, among other things, that: (ii) the Atlantic, its cargo (if any), and the possessions on board, all belong to Ontario because the Province is the owner of the soil in which these abandoned things are embedded; (iii) in the alternative to (ii), Her Majesty the Queen in Right of Ontario claims title on the basis of the Royal Prerogative to wrecks; The court in Mar Dive agreed with the province of Ontario. The court found that since the Atlantic was embedded in the sediment at the bottom of Lake Erie, in the province of Ontario, that it had become the property of the Crown. (para 249) The court further agreed with Ontario s royal prerogative argument, and found that Ontario was entitled to all unclaimed wreck in the province. (para 250) 37

38 3.4 Jurisdictional Issues (i) Provincial Jurisdiction Although Canada s Constitution gives the Federal Government authority over most maritime activity including navigation, shipping and fisheries 38, it also gives Canadian provinces authority to make laws in relation to property and civil rights. 39 Further, section 109 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3. (U.K.), provides Nova Scotia with exclusive jurisdiction to enact legislation protecting anything found on or underneath the land within the boundaries of the province, including submerged lands within its provincial territory: 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. It is commonly accepted that the word Royalties in this section includes cultural heritage objects in buried or partially buried the earth. Canadian provinces therefore retain proprietary rights over ocean waters (and the land underneath them), that are within the territorial boundaries of the province. In Ontario v. Mar Dive Corp (discussed above), the court stated that: 42 At the time of Confederation in 1867, the Royal Prerogatives of the English Crown were recognized and granted to the Crown in Right of the Provinces by virtue of s. 109 of the Constitution Act, 1867, supra. All Royal Prerogatives associated with provincial lands, including the right to escheats, bona vacantia, treasure trove, etc., vest in the provincial, rather than the federal Crown. The difficulty that arises in the case of Nova Scotia is that there is room for disagreement over where the territorial boundaries of the province end. It is accepted that Nova Scotia owns all land on its coast up to the low water mark. The Nova Scotia Agreement on Offshore Oil and Gas Resource Management and Revenue Sharing was arrived at in part due to the fact that Nova Scotia and the federal government were unprepared to litigate over the issue of where Nova Scotia s territorial boundaries actually lie. In that case, the two parties reached a compromise, reflected in mirror legislation at both the provincial and national levels Constitution Act, 1867, s.91(10), (12) 39 Constitution Act, 1867, s.92(13) 40 Canada Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act. 1987, c. 3; Canada Nova Scotia Offshore Petroleum Resources Accord Implementation Act, 1988, c. 28, C 7.8 (federal act). 38

39 In summary, there is still no agreement as to where the territorial boundary of Nova Scotia lies. The federal and Nova Scotia governments have opposing perspectives on this issue. Any legislative reform in the area of the TTA and the SPPA should acknowledge that there is a potential dispute between these two parties. (ii) Federal Jurisdiction There are some coastal waters that are an exception to Nova Scotia s otherwise exclusive legislative jurisdiction, such as federal harbours designated as public harbours. 41 In these waters, the federal government has the jurisdiction to legislate. A second area in which the federal government has jurisdiction is with respect to the reporting of wrecks. Although Nova Scotia may legislate with respect to the exploration and excavation of wrecks (as long as the wreck is unclaimed by a foreign government and is within the territorial boundary of the province), wrecks are still reported to the federal Receiver of Wrecks under the Canada Shipping Act. The source of the federal government s authority to legislate over wrecks in this fashion is s. 91(10) of the Constitution Act, 1867, noted briefly above. Many wrecks can be considered a navigational hazard, and therefore the federal government can legislate in respect of wrecks insofar as its legislation addresses wrecks that may be associated with navigational issues or hazards. 41 As set out in Part 3 of the Public Ports and Public Port Facilities Regulations, SOR/

40 4.0 LESSONS LEARNED FROM OTHER JURISDICTIONS 4.1 Canada Federal (a) Federal Legislation For an overview of federal legislation, see section 3.3, above. (b) Parks Canada Underwater Archaeology Program As described in Section m2.1 above, the Parks Canada Underwater Archaeology Program (the UAP ) is a well established and respected program that performs marine archaeological research. It has the financial resources to do work that is not possible for most other jurisdictions, including Nova Scotia, which have mandates for resource management rather than pure research. It is also likely true that no province has need of such a program given the presence of the UAP. For instance, the UAP has done extensive work in Louisburg, Nova Scotia, excavating two ships the Celebre and the Prudente. They have also prepared the site of the Celebre for carefully regulated public diving expeditions, which have been happening for years, and have been using technology to monitor the Prudente in the hopes of opening that site up to the public British Columbia The primary legislation protecting archaeological and heritage objects in British Columbia is the Heritage Conservation Act, RSBC 1996, c (a) Operation of the Act Purpose The Heritage Conservation Act ( HCA ) has as its purpose the protection and conservation of heritage property in British Columbia. (s. 2) Definitions The HCA is somewhat unique among Canadian jurisdictions in that it is one of the few statutes that explicitly recognizes and defines heritage object with application in a marine context: 40

41 heritage site means, whether designated or not, land, including land covered by water, that has heritage value to British Columbia, a community or an aboriginal people. heritage object means, whether designated or not, personal property that has heritage value to British Columbia, a community or an aboriginal people. heritage wreck means the remains of a wrecked vessel or aircraft if 2 or more years have passed from the date that the vessel or aircraft sank, was washed ashore or crashed, or the vessel or aircraft has been abandoned by its owner and the government has agreed to accept the abandonment for the purposes of this Act. Designation of Sites & Prohibited Activities The Act provides for the designation of land as a Provincial heritage site and personal property as a Provincial heritage object. (s. 9) Once land or an object is designated as a provincial heritage site or property, it is protected. Section 13(2) states that no person may: (a) damage, desecrate or alter a Provincial heritage site or a Provincial heritage object ; (b) damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains or any heritage object ; Likewise, no archaeological activity may take place without a permit: 14 (1) A person must not excavate or otherwise alter land for the purpose of archaeological research or searching for artifacts of aboriginal origin except under a permit or order issued under this section. Excavation May Occur with Permit The HCA provides that designated sites or objects cannot be altered, damaged, desecrated or excavated except by authorization of a permit issued by the minister. (s. 12) Excavation or alteration of nondesignated land for purposes of archaeological research may similarly be authorized by permit. (s. 14) (b) Noteworthy Provisions Preservation Intervention The Minister may order the owner of property that is protected under the Act (i.e. protected site or object) to preserve the property at the expenses of the government if the Minister feels that such property is subject to damage or deterioration. (s. 21(1)) Similarly, if the minister feels that property protected under the Act is subject to damage or deterioration due to neglect of the owner, the minister may order the owner to preserve the property at the expense of the owner. (s. 21(2)) 41

42 Advisory Committees The Act provides for the establishment of an advisory committee to help administer the Act: 22 (1) The minister may establish or authorize one or more committees to act in an advisory capacity on matters relating to this Act or to the conservation of heritage sites, heritage objects and other heritage resources New Brunswick The Historic Sites Protection Act, R.S.N.B. 1973, c. H 6 is the New Brunswick legislation that protects cultural heritage objects. It protects anthropological sites and objects, and historic sites and objects. (a) Operation of the Act Definitions A selection of pertinent definitions includes the following: anthropological object means an object of anthropological significance found at an anthropological site; anthropological site means any site, parcel of land, building, or structure of anthropological significance that has been designated as such by the Minister; archaeological field research means explorations, surveys or excavations carried out for the purpose of obtaining information of an archaeological nature or with the intention of recovering objects of archaeological significance; historic object means an object of historical significance found at an historic site; historic site means any site, parcel of land, building, or structure of historical significance that has been designated as such by the Minister; protected site means any historic or anthropological site that has been designated as such by the Minister. Designation of Sites & Prohibited Activities The Minister may designate any site, parcel of land, building, or structure of any kind to be an historic or anthropological site. (s. 2) Further, the Minister may designate any historic or anthropological site to be a protected site. (s. 2) Therefore, a protected site is either (a) a historic site; or (b) anthropological site. The basic prohibition relating to protected sites is found in s. 3: No person shall excavate or alter in any way a protected site or remove or cause to be removed therefrom any historical or anthropological object unless he is the holder of a permit. 42

43 A further prohibition relating to prohibited archaeological activity is found in s. 7.1: No person shall conduct archaeological field research in the Province unless he possesses a valid license obtained from the Minister under such terms and conditions as the Minister may specify. (s. 7.1) Ownership of Objects All historical or anthropological objects taken by any person under this Act shall be deposited forthwith by such person in the New Brunswick Museum and shall remain there in custody of the Board of the Museum unless or until the Minister otherwise directs. (s. 6) (b) Noteworthy Provisions Advisory Board The Act provides for the creation of an advisory board in s. 10. The board is to be composed of experts such as a member of the New Brunswick Museum, members of the New Brunswick Historical Society, and such other persons who, in the opinion of the Minister are prominent for their interest in the preservation and promotion of local history. This Board is similar in some respects to the Advisory Committee provided for in s. 5 of the SPPA Prince Edward Island The Archaeological Sites Protection Act, R.S.P.E.I 1988, c. A 17 [ ASPA ], is very short and very concise. However, its basic operation by way of prohibition and permit is similar to the every other Canadian jurisdiction. Definitions Some pertinent definitions: "archaeological investigation" means an investigation made in or on land, or on the bed or subsoil of inland or territorial waters of the province, for the purpose of recovering objects of pre historical or historical significance; "archaeological site" means land of pre historical or historical significance designated under section 2; "artifact" means an object of pre historical or historical significance; Designation of Sites and Prohibited Activity The ASPA provides who the designation of archaeological sites under Section 2. The Act sets up a familiar prohibition/permit mechanism in section 4 of the ASPA. Section 4 covers both the prohibitions 43

44 on designated sites, as well as activities that are prohibited regardless of location ( archaeological investigation ): Permitting No person or agency shall excavate or alter any archaeological site, remove any artefact therefrom or carry on any archaeological investigation unless the person or agency is the holder of a permit issued by the Minister. Similar to the Historical Resources Act of Newfoundland, the PEI Act requires that a permit holder must submit a report to the minister within one year of the date of issue of the permit that contains a summary of the field work done during the proceeding season. There are also other requirements of a permit applicant for instance, a permit will only be issued after the Minister has consulted with the Advisory Board. Ownership of Objects All artifacts recovered from an archaeological site are deemed by the Act to be the property of the Crown in right of the Province. (s.7) (b) Noteworthy Provisions Permit Requirements The ASPA affirms its commitment to preservation and conservation through Section 4 (5), which states: Without prejudice to subsection (4), a permit is issued subject to the following general conditions: (a) the investigation is to be conducted for the sole purpose of recovering information and materials for scientific and historical study; (b) the investigation shall be conducted in accordance with generally accepted scientific and professional standards. This differs from many other provincial statutes, which do not place restrictions on the purpose for which a permit will be used. Advisory Board The Act mandates that the Minister create an Advisory Board: 9. (1) The Minister shall establish an Advisory Board to advise and make recommendations with respect to all matters to which this Act refers. 44

45 The Advisory Board is to include a representative of the PEI Museum, the Provincial Archivist, and a representative of the University of PEI. Again, this provision is similar to the Advisory Committee provided for in s. 5 of the SPPA Newfoundland and Labrador The relevant Act in Newfoundland is the Historic Resources Act, R.S.N.L. 1990, c. H 4. The Act focuses on the protection and preservation, coordination of the orderly development, study and interpretation, and promotion and appreciation of the historic palaeontological resources of the Province. (a) Operation of the Act Similar to other similar provincial Acts, the HRA operates primarily by way of a prohibition permit system. Definitions Some pertinent definitions: "archaeological investigation" means an investigation made by a person for the purpose of discovering, in, on or as forming part of the land within the province, archaeological objects and includes a survey or examination whether or not it involves interference with or removal of the soil or of an archaeological object on, in or partly in land; "archaeological object" means an object showing evidence of manufacture, alteration or use by humans that is found in or on land within the province and is of value for the information that it may give on prehistoric or historic human activity in the province and includes human remains; "historic resource" means a work of nature or of humans that is primarily of value for its archaeological, prehistoric, historic, cultural, natural, scientific or aesthetic interest, including an archaeological, prehistoric, historic or natural site, structure or object; "provincial cultural property" means an historic resource or palaeontological resource that is the subject of a declaration under section 14; "provincial historic site" means a site, area, parcel of land, building, monument or other structure that is the subject of a declaration under section 16; "registered provincial cultural resource" means a site, event, person or cultural tradition that is the subject of a declaration under section 17; "significant palaeontological site" means an area of land that is the subject of a declaration under section Designated Sites & Prohibited Activity The Lieutenant. Governor in Council may designate a site, area, parcel of land, building, monument or other structure in the province as a provincial historic site. Any such designated site must have been acquired on behalf of the Crown by purchase or otherwise prior to its designation. (s. 16) 45

46 The Lieutenant Governor in Council may also designate a site as a registered historic site under s. 17, or a paleontological significant site under s As with other legislation described above, once a site has been designated, it is protected: 18. A person shall not, except with the written consent of the minister, (a) move, destroy, damage, deface, alter, add to, mark or interfere with; and (b) remove from a provincial historic site, registered provincial cultural resource, significant palaeontological site of the province, an archaeological object, significant fossil, building, monument, thing or other structure located on, in or under a provincial historic site, registered provincial cultural resource or significant palaeontological site. The prohibited activity under the HRA is archaeological or paleontological investigation. The prohibition relating to this activity is set out in Section 8: Permitting a person shall not carry out an archaeological investigation or a palaeontological investigation in the Province unless that person holds a valid permit issued under this section. Archaeological investigations can be undertaken with a permit. Section 8(2) states: the minister may issue a permit authorizing the person named in it to carry out an archaeological investigation or a paleontological investigation. It should be noted, however, that the s. 18 prohibition related to certain designated sites and resources is virtually absolute: the actions referred to cannot be done even with a permit. Only written permission from the Minister will allow a person to perform any action described in s.18. Ownership of Objects Title to all archaeological objects an all significant fossils vests in the Crown under the Act. (ss.11.1) This includes archaeological objects or fossils that are in the possession of individuals other than the Crown. (b) Application to Underwater Cultural Resources It should be noted that the archaeological investigation and paleontological investigation activities that require a permit under Section 8 of the HRA would include activities such as treasure hunting. Under the Act an archaeological investigation means: An investigation made by a person for the purpose of discovering, in, on or as forming part of the land within the province, archaeological objects and includes a survey or examination whether or not it involves interference with or removal of the soil or of an agrological object on, in or partly in the land; 46

47 Although the Act does not explicitly refer to underwater archaeological or historic objects, the government of Newfoundland has effectively stated its belief that the Act applies to UCH objects. In Brooks Aviation Inc. v. Boeing SB 17G Aircraft, mentioned above, the Province of Newfoundland and Labrador claimed title to a wrecked aircraft that was located on the bottom of a lake in Labrador. The Province claimed that as the wreck was found on land within the province, the Historic Resources Act applied. While the court in Brooks Aviation did not rule on the Province s claim, it did recognize the Province s interests under the HRA, stating: the Court urges that if salvage plans are to be carried out, the plaintiff should consult with the province on appropriate arrangements to permit salvage of the aircraft (para 38). (c) Noteworthy Provisions Registry of Historic Resources Section 15 of the Act provides that: The minister shall maintain within the department a registry which shall be known as the Provincial Registry of Historic Resources. The registry is to contain all designated sites and resources set out in the Act. Historic Resources Fund The Act creates a fund called the Historic Resources Fund. It is separate from the Consolidated Revenue Fund of the government of Newfoundland. (s. 6 (2)) All money received by the minister on behalf of the Crown by gift, donation, contribution or bequest under the Act is to be credited to an account that will be kept by the Minister of Finance. The HRA provides that money donated by individuals to this fund shall be used for the purpose specified by those individuals. Permit Requirements and Archaeological Standards The HRA regulations outline the types of permits and requirements for permit applications in the archaeological investigation permit regulations, CNLR 963/96. These regulations are noteworthy for the extent of detail and clarity in the requirements imposed upon permit holders. These regulations require specific qualifications of applicants permit applicants must have a postgraduate degree in anthropology or archaeology and at least 24 weeks of supervised training in the field in basic research techniques. 47

48 Once a permit is issued, a permit holder is required to submit a report within one year of the expiration of the permit that describes in detail what was done on and discovered at the site that was explored. The regulations are also effective in the sense that they clearly outline how archaeological objects recovered should be cared for. The care required includes cleaning, numbering and cataloguing all archaeological objects collected. The regulations also place the onus for the conservation of all archaeological objects collected on the permit holder. Any individual permit holder who will likely recover objects in the course of their archaeological exploration and/or excavation is required to demonstrate that adequate budgeting has been allocated for conservation of recovered objects, and to obtain the services of a conservator approved by the branch who will assume responsibility for the conservation of archaeological objects Ontario The Ontario Heritage Act, R.S.O. 1990, c. O 18 is a broad statute that covers not only archeological and historic sites and objects, but also the built environment. It encompasses territory that in Nova Scotia is covered by the Heritage Property Act. R.S., c However, the Act does not appear to lose effectiveness as a result of its breadth, and has some provisions that are unique among the domestic heritage statutes studied for this Report (such as the definition and designation of marine archaeological sites ). Further, many key provisions in the Ontario legislation are found in regulations passed pursuant to the Act. The regulations provide for a level of detail (especially in terms of permitting standards and obligations) that is not found in most other domestic jurisdictions. (a) Operation of the Act Definitions Some pertinent definitions: designated property means property that is designated by the Minister under this Part [Part VI: Conservation of Resources of Archaeological Value] archaeological fieldwork means any activity carried out on, above or under land or water for the purpose of obtaining and documenting data, recovering artifacts and remains or altering an archaeological site and includes monitoring, assessing, exploring, surveying, recovering and excavating. (Defined in the Definitions regulation) archaeological site means any property that contains an artifact or any other physical evidence of past human use or activity that is of cultural heritage value or interest. (Defined in the Definitions regulation) marine archaeological site means an archaeological site that is fully or partially submerged or that lies below or partially below the high water mark of any body of water. (Defined in the Definitions regulation) Designated Sites and Prohibited Activity 48

49 The Ontario act encompasses the protection of heritage buildings and other structures, as well as archaeological sites and resources. In this sense it is an unlikely comparator for Nova Scotia, since it covers territory which in Nova Scotia is addressed in a variety of statutes beyond the TTA and the SPPA. The primary prohibited activity set out in the act is Archaeological fieldwork. Archaeological fieldwork is defined in regulations passed pursuant to the Act. The Act states at s. 48 that: No person shall do any of the following unless the person applies to the Minister and is issued a license under this Part that allows the person to carry out the activity in question: 1. Carry out archaeological fieldwork. 2. Knowing that a site is a marine or other archaeological site, within the meaning of the regulations, alter the site or remove an artifact or any other physical evidence of past human use or activity from the site. 3. With respect to a marine archaeological site that is prescribed by regulation, i. Dive within 500 metres of the site or within such other distance of the site as may be prescribed by regulation. ii. Operate any type of submersible vehicle, including remotely operated vehicles, autonomous underwater vehicles, submarines or towed survey equipment such as side scan sonars or underwater cameras within 500 metres of the site or within such other distance of the site as may be prescribed by regulation. 2002, c. 18, Sched. F, s. 2 (27); 2005, c. 6, s. 35. Section56 of the Act also prohibits excavation at a designated site, or removing an artifact from such a site: Permitting 56. (1) No person shall excavate or alter property designated under this Part or remove any artifact therefrom without first applying to the Minister and receiving a permit therefor. R.S.O. 1990, c. O.18, s. 56 (1); 2002, c. 18, Sched. F, s. 2 (35). Ontario has a system that includes both permits and licenses. Permits are required for any excavation that might take place on designated property, and any removal of an artifact from designated property, as noted in s. 56, above. For the purposes of s. 56, designated property is defined simply as property that is designated by the Minister under this Part. The Minister may designate property that the Minister, in consultation with the Ontario Heritage Trust, deems to be of archaeological or historical significance. (s. 52) 49

50 A license is required, as noted in section 48 cited above, in order to perform archaeological fieldwork, alter or remove an artifact from an archaeological site, or perform various diving or surveying activities within a certain proximity to marine archaeological sites. The Act and regulations passed pursuant to the Act set out explicit requirements for any license applicant. Section 48(8) of the Act sets out the general requirements that The Minister may issue a licence to an applicant if the applicant proves, to the satisfaction of the Minister, that, (a) the applicant is competent to conduct archaeological fieldwork in a responsible manner in accordance with this Part and the regulations; (b) the past conduct of the applicant does not afford reasonable grounds for the belief that the archaeological fieldwork will not be carried out in accordance with this Part and the regulations; (c) the activities proposed by the applicant are consistent with the conservation, protection and preservation of the heritage of Ontario; and (d) the applicant is in compliance with such eligibility criteria and other requirements for the issuance of the licence as may be prescribed by the regulations. 2002, c. 18, Sched. F, s. 2 (29). The Ontario regulations pertaining to Licenses Under Part VI of the Act Excluding Marine Archaeological Sites then go further in prescribing specific classes of license and the qualifications that each class requires. For instance, an applicant for a professional license must hold a Master s degree awarded by a university in an area of archaeology, and have performed work that has provided the applicant with at least 52 consecutive or non consecutive weeks of experience in applying archaeology theory to the practical work situation (Regs. s. 7(1)(4.i.) Ownership of Objects Ontario is one of only two provinces (the other being Quebec), that does not cause title to historical or archaeological objects to vest in the province. In Ontario the Minister can direct that artifacts taken by licence or permit holders be deposited in a public institution, to be held in trust for the people of Ontario: 66. (1) The Minister may direct that any artefact taken under the authority of a licence or a permit be deposited in such public institution as the Minister may determine, to be held in trust for the people of Ontario. 2002, c. 18, Sched. F, s. 2 (43). The Act further provides at s. 66(2) that where an artifact is taken by a person who is not a licensee, or is taken in contravention of a license, the Minister or someone authorized by the Minister may seize the object and deposited in a public institution, again to be held in trust for the people of Ontario. 50

51 However, the Act does not specify to whom such seized items belong. Under the common law relating to finds, objects found embedded in the soil are generally found to be the property of the landowner; if found on top of the soil (i.e. no embedded), the finder may be granted title to the object. (b) Application to Underwater Cultural Resources The Ontario Heritage Act does make provision for designated marine archaeology sites, but it appears that even without a designated marine site, the Act might still apply to wrecks due to the fact that the province of Ontario owns all submerged land under navigable waters within the province. (See the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4) The case Ontario v. Mar Dive Corp., discussed in section 3.4.2, above, involved an action by salvors for the rights to the abandoned hull and cargo of the Atlantic, a ship that sank to the bottom of Lake Erie in the mid 1800s. The ship was embedded in the bottom of the lake, on the Canadian side of the international border. The province of Ontario asserted ownership over the sunken vessel and its cargo. In its factum the province stated, among other things, that: (ii) the Atlantic, its cargo (if any), and the possessions on board, all belong to Ontario because the Province is the owner of the soil in which these abandoned things are embedded; (iii) in the alternative to (ii), Her Majesty the Queen in Right of Ontario claims title on the basis of the Royal Prerogative to wrecks; The court in Mar Dive agreed with the province of Ontario. The court found that since the Atlantic was embedded in the sediment at the bottom of Lake Erie, in the province of Ontario, that it had become the property of the Crown. (para 249) The court further agreed with Ontario s royal prerogative argument, and found that Ontario was entitled to all unclaimed wreck in the province. (para 250) (c) Significant Provisions Marine Archaeological SiteThe Ontario Act is the only Canadian legislation that sets out designated marine archaeological sites that are protected by statute: 48. (1) Subject to subsection (2), no person shall do any of the following unless the person applies to the Minister and is issued a licence under this Part that allows the person to carry out the activity in question: 2. Knowing that a site is a marine or other archaeological site, within the meaning of the regulations, alter the site or remove an artifact or any other physical evidence of past human use or activity from the site. 3. With respect to a marine archaeological site that is prescribed by regulation, 51

52 i. Dive within 500 metres of the site or within such other distance of the site as may be prescribed by regulation. ii. Operate any type of submersible vehicle, including remotely operated vehicles, autonomous underwater vehicles, submarines or towed survey equipment such as side scan sonars or underwater cameras within 500 metres of the site or within such other distance of the site as may be prescribed by regulation. 2002, c. 18, Sched. F, s. 2 (27); 2005, c. 6, s. 35. This provision provides a significant amount of protection to recognized UCH resources within the province. Exempted Sites and Activities Similar to some American legislation, the Ontario Act allows for certain prescribed sites and activities to be exempted from licensing requirements. Section 48(2) states: A licence is not required if, (a) the site is prescribed, or belongs to a class of sites prescribed, by the regulations; (c) the activity undertaken is prescribed, or belongs to a class of activities prescribed, by the regulations. 2002, c. 18, Sched. F, s. 2 (27). This permits the province to set out areas where archaeological or underwater exploring may not be harmful to cultural resources. This will have the positive effects of reducing the load of license applications, encouraging public engagement with the exempted historical sites and resources by allowing for recreational use, and encouraging compliance with the act and regulations Alberta (a) Operation of the Act The Alberta Historical Resources Act, uses the same prohibition permit mechanism to regulate archaeological activity and protect important sites as other Canadian statutes reviewed in this Report. Definitions Some pertinent definitions include the following: archaeological resource means a work of humans that (i) is primarily of value for its prehistoric, historic, cultural or scientific significance, and (ii) is or was buried or partially buried in land in Alberta or submerged beneath the surface of any watercourse or permanent body of water in Alberta, and includes those works of humans or classes of works of humans designated by the regulations as archaeological resources; historic object means any historic resource of a movable nature including any specimen, artifact, document or work of art; 52

53 historic resource means any work of nature or of humans that is primarily of value for its paleontological, archaeological, prehistoric, historic, cultural, natural, scientific or aesthetic interest including, but not limited to, a paleontological, archaeological, prehistoric, historic or natural site, structure or object; historic site means any site that includes or consists of an historical resource of an immovable nature or that cannot be disassociated from its context without destroying some or all of its value as an historical resource and includes a prehistoric, historic or natural site or structure; Designation of Sites and Prohibited Activity The act permits the Minister to designate historic resources as a Registered Historic Resource or Provincial Historic Resource. While prohibitions are set out with respect to both of these designations, no permit is available to allow archaeological activity to take place only written permission of the Minister is sufficient: 9) Notwithstanding any other Act, no person shall (a) destroy, disturb, alter, restore or repair any historic resource or land that has been designated under this section, or (b) remove an historic object from an historic resource that has been designated under this section without the written approval of the Minister. The main prohibited activity is excavation : 30(1) Subject to subsection (2), no person shall make an excavation on any land in Alberta for the purpose of seeking or collecting historic resources unless the person is the holder of a valid permit issued under this section. (2) The Minister may exempt any person from the requirements of subsection (1) on any conditions the Minister considers appropriate. Finally, there is a prohibition in section 34(1) against altering, marking or damaging archaeological or paleontological resources, except where allowed by permit: Permitting 34(1) Subject to subsection (2), no person shall alter, mark or damage an archaeological resource or paleontological resource unless the person is the holder of a valid permit under section 30 or has the written permission of the Minister to do so. Archaeological investigation can occur by way of a permit issued by the Minister: 30(3) The Minister may issue permits authorizing the person named in the permit to make excavations for the purpose of seeking or collecting historic resources on any land in Alberta described in the permit. 53

54 This permit would presumably apply to underwater land in the same way that it applies to dry land. The Alberta Historical Resources Act is also provides for permitting standards and permit descriptions in extensive regulations passed pursuant to the Act (discussed further below). Ownership of Objects Section 32 of the act addresses ownership of archaeological objects. As with many other Canadian statutes, ownership of archaeological (and in this case paleontological) resources vests in the provincial Crown: 32(1) Subject to subsections (2) and (3), the property in all archaeological resources and palaeontological resources within Alberta is vested in the Crown in right of Alberta. This type of provision is nearly universal in Canadian provincial heritage legislation. (b) Noteworthy Provisions While the overall operation of the Alberta Historical Resources Act is similar to many other Canadian statutes, it is also contains certain provisions that are less common, such as those that provide for the creation of a Historic Resources Fund. The Act also empowers municipalities to designate an area as a Municipal Historic Area, something that most provincial statutes do not provide for (Ontario being one exception). Historic Resources Fund Section 13 establishes a Historic Resources Fund. This provision could be effective if added to Nova Scotia legislation, as a means of funding underwater archaeological operations or enforcement activities. (3) The following must be deposited into the Fund: (a) fees and charges under this Act designated by the Minister to be deposited into the Fund; (b) donations to the Fund; (c ) money received under agreements between the Government of Alberta as represented by the Minister and another government or any other person or entity made to achieve any of the purposes described in subsection (2); A provision similar to the one cited above could be incorporated into Nova Scotia s heritage legislation. Although public monies typically flow to the province s Consolidated Fund, it is possible for the legislature to create a fund that is dedicated to directing assets from licensing or treasure royalties to support the preservation of Nova Scotia s heritage and cultural heritage objects. Archaeological and Palaeontological Research Permit Regulation, Alta. Reg. 254/

55 Alberta is an example, similar to Ontario, of the use of regulations to set out explicit standards relating to permit types and requirements. The eligibility requirements set out in Alberta s regulations, for instance, are very specific: anyone applying for an archaeological research permit must submit documentation evidencing a post graduate thesis in archaeology or anthropology, 24 weeks of supervised field training in basic research techniques, and at least six weeks of training in archaeological curating or archaeological laboratory analysis, among other things. Designation of Municipal Historic Resources The Alberta Act empowers municipalities to designation resources as Municipal Historic Resources. The designation takes place through a municipal by law, and once designated the historic resource is protected by way of a prohibition found at s. 26(6) of the Act: 26(6) Notwithstanding any other Act, no person shall (a) destroy, disturb, alter, restore or repair an historic resource that has been designated under this section, or (b) remove any historic object from an historic resource that has been designated under this section, without the written approval of the council or a person appointed by the council for the purpose. Any violation of this prohibition would attract the same range of penalties set out in s. 52(1) of the Act, adding a significant stick that could be used to enforce any by laws relating to historic resources. (Individual fines can reach $50,000, and the offender can be imprisoned if found guilty). The provision relating to municipal historic resources is attractive because it places some degree of control over, and responsibility for protection of, historical resources with the communities that are proximate the resource. Those communities may feel most strongly about the resource, and be the most willing to be involved in its preservation. 4.2 United Kingdom The UK Treasure Act, 1996 The UK Treasure Act 1996 ( Treasure Act ) is entirely different from the Nova Scotia TTA, in spite of its similar title. The UK Treasure Act does, however, incorporate certain mechanisms that could be reproduced in a Nova Scotia treasure discovery or archaeological preservation regime. First, the UK Treasure Act is not geared towards encouraging or regulating a treasure hunting industry. Rather, it is one prong in a legislative scheme that is meant to facilitate and encourage the voluntary reporting of archaeological finds. The Treasure Act, along with the Treasure Act Code of Practice and the Portable Antiquities Scheme, encourages the voluntary reporting of all archaeological objects. The UK Treasure Act is aimed primarily at members of the public who accidentally discover archaeological or heritage objects and amateur treasure hunters who may find such objects. Second, the UK Treasure Act does not apply to treasure that is found underwater, or to wrecks. The jurisdiction of the Treasure Act ends at the low water mark along the coast. Below the low water mark, 55

56 the Maritime Shipping Act applies to the discovery and reporting of wreck and the discovery of submerged archaeological or heritage objects. a. The Operation of the Act As noted above, the purpose of the Treasure Act is to encourage voluntary reporting of archaeological objects and to facilitate the purchase of such objects by various museums. The Act starts by defining what treasure is for the purposes of the Act. In the context of the Treasure Act, treasure is restricted to objects that are likely to have significant historical or archaeological value. For instance, Section 1 (a) of the Act defines treasure as an object that has is at least 300 years old, and expressing certain other attributes. The Act provides that a person who finds an object that he believes (or has reasonable grounds to believe) is treasure must notify the coroner for the district in which the object was found within fourteen (14) days. The coroner will then direct the finder to deliver the found object to a reporting centre, and the reporting centre will then make a preliminary determination as to whether the object is treasure as defined by the Treasure Act. If the object is believed to be treasure, the reporting centre then notifies various government bodies and museums to determine if they wish to acquire the find. If a museum or other government body does wish to acquire the find, the coroner will hold an inquest to determine whether or not the find is treasure. If the find is declared treasure at the conclusion of an inquest, then the department for culture, media and sport will refer the find to the Treasure Valuation Committee so that the treasure can be valued. Once the treasure has been valued, the finder will be offered a reward that is not to exceed the market value of the treasure. b. Lessons Learned from the Treasure Act In spite of the many differences between the UK Treasure Act and the current treasure hunting regime in Nova Scotia, the Treasure Act does have many characteristics that could potentially be incorporated into any changes that are made to the TTA or the SPPA, including the following: Definition of treasure : The Treasure Act defines treasure in a specific way such that the Act targets a population of individuals who are finding objects of cultural importance. It thereby ensures that the reporting obligation is only imposed upon those who have found archaeologically significant objects, and does not attempt to regulate finds of other less significant objects; Issuance of a companion Code of Practice : Section 11 of the Treasure Act states that the Secretary of State must prepare a code of practice relating to treasure. This code has commentary on the definition of treasure, the ownership of treasure and offers guidance for finders and other people concerned with treasure. In general, it elaborates on the concepts and directives that are found in the Treasure Act. The code of practice is intended to be accessible 56

57 to the public to facilitate compliance with the Treasure Act and to promote the responsible reporting of treasure finds. Institution of a heavy penalty for non compliance: The Treasure Act includes a stiff penalty for those who fail to report a find of an object that may reasonably be considered treasure. Section 8 of the Act creates a summary conviction offence that carries a penalty of either imprisonment for a maximum of three months, a fine of up to 500 pounds, or both. Vesting of property in treasure to the Crown, but issuance of discretionary rewards for finders: The Treasure Act causes most of what is found by finders to vest in the Crown. However, this vesting is paired with a rewards scheme under the Act that would, in theory, encourage the continued reporting of finds. Although the payment of a reward is not mandatory under the Act, it would appear that this component is an important mechanism to ensure that finds are reported. Protection of the rights of current license holders: The Treasure Act does not provide for the issuing of licensing in the same way as the TTA, but it does recognize the rights of franchisees. Franchisees are various individuals or bodies who in the past were granted rights to certain treasure trove by monarchs. Although no grants of franchise have been made in recent times, the concept of protecting, to some extent, the rights of these entities could be beneficial in Nova Scotia s context as well. For instance, allowing licensees under the TTA to retain their licenses for a period of time may diminish the sense of injustice that they might otherwise feel due to the repeal or modification of the TTA. The UK Treasure Act therefore has a number of lessons that may be applicable in the Nova Scotia context, in spite of the major differences between the Treasure Act and any legislation in Nova Scotia The Merchant Shipping Act 43 Part IX, Chapter 2 of the Merchant Shipping Act deals with regulating wrecks, similar to Part VII of the CSA As in Canada, the United Kingdom has a receiver of wreck and anyone who finds a shipwreck has a duty to report the find to the receiver. 44 However, there is one significant difference between the two acts: under the Merchant Shipping Act the Crown owns and may sell any part of or any object found with an unclaimed ship. The Act does require that the finders of the wreck be paid a salvage fee. 45 In the UK then, ownership of abandoned (or unclaimed ) wreck is similar to that provided for under provincial law in Canadian provinces. As noted earlier, the common law of finds and the provincial royal prerogative should result in abandoned wrecks becoming the property of the province (as was the case in Mar Dive). The Merchant Shipping Act simply codifies this rule of ownership. In this sense the Merchant Shipping Act is also distinct from the CSA 2001, in that the latter statute does not provide for (U.K.) 1995 c S.242(1), Merchant Shipping Act 45 S.243, Merchant Shipping Act 57

58 Crown ownership over wrecks. Under the CSA 2001, the receiver of wreck can chose to sell ( dispose of ) an abandoned wreck that is reported to the receiver, or allow the finder to become the owner. The provision for Crown ownership of wrecks in the Merchant Shipping Act could result in better protection of or preservation of wrecks. However, no clear data on this point has been found. Also of note is the fact that the Merchant Shipping Act provides for salvage awards to salvors who recover wrecks or parts of wrecks that then become property of the Crown. This would appear to preserve the economic incentive for finding and recovering wrecks, without providing the finders with ownership of the actual objects that they recover. 4.3 The United States Legislation governing UCH in the coastal states of the USA is particularly useful as a comparison for Nova Scotia since their waters pose many of the same legislative challenges. There is an array of wrecks along the east coast of the United States, and many of them have attracted the attention of treasure hunters. This has especially been the case in Florida. As will be discussed below, the federal government in the United States exerts title to all underwater abandoned shipwrecks within three miles of the coast. However, it passes title to these wrecks by statute to the coastal state where the wreck was found. 46 The states therefore have primary responsibility for legislating in the area of abandoned shipwrecks found within the three mile limit. An assessment of three sample state statutes can be found in subsections None of the state legislation examined directly addresses treasure hunters per se, but most of the statutes provide some avenue of opportunity for private industry and individuals to be involved in the exploration of shipwrecks. In this sense it is much different from most Canadian jurisdictions The Marine Protection, Research and Sanctuaries Act (1972) The MPRSA provides the greatest amount of protection of any U.S. or State law to certain shipwrecks in U.S. waters. It prohibits any activity that causes loss or injury to any sanctuary resource, including historic shipwrecks. Penalties for breaching the provisions of the Act are very high, up to $100,000 per day for willful misconduct (which includes violation of archaeological sites). The Act is, however, based on a strictly site based protection model and is therefore limited in terms of its geographic scope. As of 2008, the Act only applies to 13 national marine sanctuaries and the Northwestern Hawaiian Islands Marine National Monument altogether encompassing approximately 150,000 sq. miles of marine and Great Lakes waters. 46 Abandoned Shipwreck Act, s.2 58

59 4.3.2 The United States Abandoned Shipwreck Act (1987) 47 The Abandoned Shipwreck Act (1987) [the ASA ] is federal legislation whose primary significance is in the role it plays in determining which jurisdiction state or federal has ownership of the various wrecks discovered along the coast of the United States, and subsequently which jurisdiction is responsible for regulating the exploration and excavation of these wrecks and any associated objects. The legislation arose as a result of a number of high profile cases in the United States that involved private salvors wrangling with state governments over the ownership of wrecks (See Treasure Salvors Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 408 F. Supp. 907 at p. 909 (S.D. Fla. 1976). In section 6(a), the ASA claims title to shipwrecks in U.S. waters for the federal government: (a) The United States asserts title to any abandoned shipwreck that is (1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands or a State; or (3) on submerged lands of a State and is included in or determined to be eligible for inclusion in the National Register. (s. 6) In section 6(c), the ASA transfers title to the abandoned shipwrecks noted in 6(a) to the state where the shipwreck is embedded. As a result of this transfer of ownership, the ASA places the onus of preservation and regulation of shipwrecks on states: it is the declared policy of the Congress that States carry out their responsibilities under this Act to develop appropriate and consistent policies so as to: (A) protect national resources and habitat areas; (B) guarantee recreational exploration of shipwreck sites; and (C) allow for appropriate public and private sector recovery of shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites. Finally, it should be noted that the ASA explicitly abrogates the common law of salvage for abandoned shipwrecks that are embedded in U.S. waters and finds with respect to any shipwrecks described by the Act in section 6: (a) The law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 6 of this Act applies. (s. 7) It is up to the state to prove abandonment before the ASA can apply and transfer jurisdiction to the State. Salvors have in some cases challenged the elimination of salvage law under the ASA, and have 47 (43 U.S.C et seq.) 59

60 generally had greater success where the salvors have felt that the states were limiting financial rewards such that there was inadequate incentive for salvors to recover materials. Wrecks that are found not to have been abandoned continue to operate under Admiralty law (namely the law of salvage and finds): Thus, title vests with the U.S. government, which then transfers it to the state in whose waters, or on whose submerged land the wreck is embedded. Salvors are thereby barred from asserting claims under admiralty law for wrecks covered by the ASA; instead, they must obtain a stateissued permit to proceed with salvage in a manner that is consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites. (43 U.S.C (a)) reference same as below [The Admiralty Law/law of salvage] provides some financial incentives for the salvage of property lost at sea, but it has been criticized for failing to adequately protect the archaeological value of historic wrecks. This shortcoming prompted Congress to enact the Abandoned Shipwreck Act (ASA) of 1987, which recognized that, in addition to their monetary worth, shipwrecks offer recreational and educational opportunities to sport divers and other interested groups, as well as irreplaceable State resources for tourism, biological sanctuaries, and historical research. (43 U.S.C (a)) This reflects the assumption that the social value of historic wrecks exceeds their monetary value Reference: Hallwood, Paul, and Miceli, Thomas J. Murky Waters: The Law and Economics of Salvaging Historic Shipwrecks : U. of Connecticut Working Paper (December 2004) p. 10 This is something that no Canadian provinces have done with their legislation. In fact, as we have seen in the case law from Newfoundland and Ontario discussed earlier (MarDive, and Brooks) most claims to submerged wreck in Canada that have gone to the courts have been made under the common law. It has not been until ownership was decided under the common law of finds and royal prerogative that provincial jurisdiction could operate. If the federal government in Canada were to include legislate a provision in the CSA 2001 or another statute that similarly transferred ownership of abandoned wrecks to the provinces and abrogated the role of admiralty law it would provide significant clarity The Florida Historical Resources Act 48 The Historical Resources Act [the HRA ] governs the use of publicly owned archaeological and historical resources located on state property, both on land and in the water. In this sense it is similar to Ontario s Ontario Heritage Act, and Prince Edward Island s Archaeological Sites Protection Act. Major Goals : Preservation The major goals of the HRA are to identify, register, protect, and preserve significant historical resources which belong to the public. 49 In purpose and intent, then, the HRA is very similar to most provincial statutes in Canada that focus on the preservation and conservation of cultural heritage 48 Florida General Law, Title XVIII, Chapter According to the Division of Historic Resources Website: State owned underwater resources are those that are located on the bottom of navigable rivers, streams, lakes, bays, and offshore (in the Gulf of Mexico out to 10 miles, and in the Atlantic out to 3 miles). Online: Florida Division of Historic Resources: 60

61 objects. The HRA creates a state Division of Historic Resources to co ordinate and oversea the protection of these historic resources. However, the HRA differs significantly from most Canadian jurisdictions in its approach to regulating exploration and encouraging preservation. In fact, in certain respects it resembles the legislative regime that currently exists in Nova Scotia. Permitting: Archaeological Research Permit Excavation of publicly owned archaeological or historic sites can only take place with the permission of the Division of Historic Resources. This permission can take one of two forms: The first option is to obtain an Archaeological Research Permit. This permit will only be granted to scientific and educational institutions such as museums and universities. The applicant must show that he or she has the necessary professional archaeological expertise to perform proper field research, analysis, preservation and interpretation. Under this permit, all materials collected remain public property to be administered by the State. The second option is to obtain an Exploration and Salvage Contract. These contracts enable individuals or companies, such as private salvage operations, to explore and excavate submerged state lands and recover abandoned materials, most of which they will be permitted to keep. Under these contracts: Excavation must be performed under archaeological guidelines and recovered artifacts must be conserved and recorded. At the conclusion of analysis and conservation treatment, 75 to 80 percent of these materials may be awarded to the salvor. The State generally retains the remainder of salvaged materials for research collections, museum specimens, or for public display. 50 Florida law therefore permits a level of engagement of private enterprise that is not seen in Canadian law outside of Nova Scotia. As shall be noted later, a Florida stakeholder who was integrally involved in the Florida situation noted that the model did manage to protect UCH reasonably well, though he felt State resources could have been allocated more effectively elsewhere, and would have preferred more of a protectionist model Massachusetts [General Law Ch. 6, s ; General Law,Ch. 91, s. 63; and 312 Commonwealth of Massachusetts Regulation ] Massachusetts has a legislative scheme that appears to effectively balance the needs of various groups such as sport divers, treasure hunters, and archaeologists. It also strikes a balance between the conflicting imperatives of preservation/protection and commercial interest. It accomplishes all of this by combining an expert advisory board, a clear permitting system, and designated sites that are open to specific levels of use and disturbance. 50 Online: Florida Division of Historic Resources: 61

62 Establishment of State Archaeologist and Interdisciplinary Board : Massachusetts General Law Chapter 6 establishes a board of underwater archaeological resources. This interdisciplinary Board consists of the state archaeologist, the state archivist, the director of waterways, the director of coastal zone management and others, one of whom must be a marine archaeologist and two of whom must be qualified or certified divers. A board with such expertise and could be critical in helping advise the government and in regulating the exploration and excavation of UCH resources. Although the SPPA currently provides for an Advisory Committee with certain qualified members, it lacks the inclusion of those whose experience relates more specifically to shipwrecks and the coastal environment. Permitting: Similar to the SPPA but with Greater Safeguards Regulations passed by the Board of Underwater Archaeological Resources provide for two permit types: a Reconnaissance Permit, and an Excavation Permit. 51 As it states: No person may remove, displace, damage or destroy any underwater archaeological resource except in conformity with a permit issued by the Board. As suggested by the names, a Reconnaissance Permit does not permit the permit holder to disturb the underwater site in any way; an Excavation Permit does. This is similar to two of the permit types issued under Nova Scotia s SPPA. However, Massachusetts law does provide for certain safeguards that must be followed by those who are awarded an Excavation Permit: Project Archaeologist: The Board may require on site supervision by an archaeologist or other supervisory personnel in cases when the historical significance or monetary value of a site indicates that supervision is necessary for the preservation and protection of the resource [italics added]. 52 Site Inspections: The Board or its authorized agents can undertake inspections to monitor compliance with laws and regulations and permits, to provide guidance on activities, to inspect and account for recovered resources, and so on. 53 Designation of Sites to Ensure Preservation and Public Enjoyment The regulations passed by the Board permit the Board to establish exempted shipwreck sites, as well as underwater archaeological preserves. 54 Each type of site is able to satisfy the needs of different groups interested in accessing underwater shipwrecks C.M.R C.M.R C.M.R C.M.R

63 Exempted sites (i.e. sites that can be explored without a permit), are created to preserve such sites for the continued enjoyment of the recreational diving community. Even casual artifact collection is permitted at exempted shipwreck sites. Underwater archaeological preserves are created to protect underwater resources of substantial archaeological and/or historical value. Access to these sites for recreational, scientific and historical purposes is guaranteed, but collecting is not allowed except for scientific or historical purposes, and the artifacts remain the permanent property of the state. Title to Recovered Artifacts: Permit holders are permitted to retain 75% of what they recover, with the Board determining which objects the state will keep. The state also has the right of first refusal if the permittee wishes to dispose of the assemblage of artifacts. In summary, the Massachusetts act represents a legislative scheme that is close to the current regime in Nova Scotia, albeit with certain features that clarify accessibility for various groups, and safeguards that ensure artifact recovery (even when done with commercial exploitation in mind), is performed to high archaeological standards North Carolina Archives and History Act 55 The Archives and History Act is less rigid and arguably much less protective than the Florida and Massachusetts legislation described above. The legislation is less clear in terms of the qualifications required of license applicants. The legislation is, however, potentially more protective in that it provides for licenses and permits with flexible artifact ownership. This would allow the state to determine how many artifacts to allow an explorer to keep in each instance and would allow the state to keep more than the 25% permitted under Florida law when necessary. Licenses: Wider State Discretion The Act provides that any qualified person, firm or corporation may apply for a permit or license to conduct exploration, recovery or salvage operations that involve a part of an abandoned shipwreck or its cargo being removed or displaced. There is no clear definition of qualified person. Further, the Department of Cultural Resources must be convinced that the granting of the permit is in the best interests of the state, but indications of what will qualify as best interest are not included. Title to Recovered Artifacts: Flexible Through the Act, the state of North Carolina claims title to the all shipwrecks, vessels, cargoes, tackle, and underwater archaeological artifacts found on the bottom of any submerged land within one nautical 55 North Carolina General Statutes, Ch. 121, Art

64 mile of the low water mark. Recovered artifacts, however, may be granted to a license or permit holder, as per the terms of the license or permit. How much is granted to the licensee and how much is retained by the state may vary from case to case. 4.4 International Obligations UNESCO Convention on the Protection of the Underwater Cultural Heritage The UNESCO Convention on the Protection of Underwater Cultural Heritage was completed in 1999 and was adopted by the UNESCO General Conference in The Convention will enter into force in accordance with its Article 27 on January 2, 2009, for those 20 states that have deposited their respective instruments of ratification or acceptance on or before October 2, Canada has not signed on to date. The United States, the United Kingdom and most other major maritime powers (with the exception of Spain) are also not signatories to the Convention. The Convention represents a model whereby signatory states are: directed to focus on preserving underwater cultural heritage in situ ( in place ); 57 forbidden from allowing underwater cultural heritage to be commercially exploited; 58 permitted only to allow non intrusive access to underwater sites; 59 and directed to take active measures to preserve any underwater cultural heritage. 60 While the UNESCO UCH Convention may represent an ideal to some, it is likely unattainable and unrealistic for many. The type of in situ preservation stipulated by the Convention requires the commitment of significant financial and scientific resources. Further, the prohibition against commercial exploitation of any kind means that state signatories will be limited in the means available to them of recouping or sharing the costs of exploration and preservation. As such, the Convention has not been widely accepted. Many commentators have noted that the Convention conflicts with the common law of salvage and finds, longstanding common law rules of the law of the sea. These rules were developed to encourage those with the capacity to rescue ships that were in immediate marine peril by offering a financial reward for the risk and expense incurred. However, common law salvage and finds rules were developed during a time when salvage of historic wrecks was not possible or desirable, such that salvage and finds common law have been criticized as ill equipped to deal with wrecks of historical importance. The Convention, however, restricts any involvement in underwater cultural heritage that is not directed exclusively towards study and preservation. 61 The international debate continues regarding how best 56 Signatory States: Panama; Bulgaria; Croatia; Spain; Libya; Nigeria; Lithuania; Mexico; Paraguay; Portugal; Ecuador; Ukraine; Lebanon; Saint Lucia; Romania; Cambodia; Cuba; Montenegro; Slovenia; Barbados (taken from UNESCO s web site); 57 Article 2, sub 5 UNESCO Convention 58 Article 2, sub 7 UNESCO Convention 59 Article 2, sub 9 UNESCO Convention 60 Article 2, sub 3 UNESCO Convention 61 Article 2, sub 7 UNESCO Convention prohibition of commercial exploitation; sub 8 focus on preservation; sub 10 focus on in situ preservation. 64

65 to protect and explore underwater cultural heritage, and the role the UNESCO Convention plays in that goal Sovereign Immunity International law provides that a state owned ship such as a military vessel remains the property of that state until it has been abandoned by the state, explicitly or implicitly. This is one aspect of what is known as sovereign immunity. A wrecked British ship and its cargo that sank off the coast of Nova Scotia in the 1800s would remain the property of the United Kingdom today under this doctrine. This is essentially what has occurred in the case of at least one high profile wreck in Nova Scotia. In 2006 a United States based treasure hunting firm called Sovereign Exploration Associates International claimed to have found artifacts from the HMS Fantome a British naval vessel. At this announcement the British government stepped in to claim ownership of the Fantome and another Royal Navy ship, the HMS Tilbury. The salvors are disputing the claimed sovereignty rights of the British Crown to this day in an ongoing court case. This principle of sovereign immunity is not disputed by Canada. The federal government will acquiesce to the ownership claims of the British government as long as the ships claimed are in fact shown to be British property. In its current form, the TTA is liable to foster conflict situations as a result of sovereign immunity claims. Since it allows private individuals exclusive license to search the seabed and keep a large portion of what they find, any treasure hunter with a license for a given area would be understandably upset if a foreign government then claimed ownership to the wreck(s) in that area. A legislative scheme that did not allow marine explorers to keep what they find should not be as prone to conflict, since the private commercial gain of the license or permit holder would not be at stake. 4.5 Summary of Some Legislative Lessons Learned of Possible Interest to Nova Scotia As described in a previous section, each piece of legislation varies in its approach to the preservation and management of cultural heritage. However, there are clear patterns that emerge in a review of the legislation. This section will outline some the most common positive features of state, provincial and territorial legislation. It should be noted, however, that the legislative features under discussion are presented at face value. This legislative review was not able to undertake an in depth evaluation of the effectiveness of the statute in each jurisdiction. While various comments were obtained from individuals in different jurisdictions, a comprehensive study was not possible. Audits or similar material assessing the effectiveness of legislation was virtually non existent. 1. Establishment of a clear priority with respect to protection and preservation of cultural and heritage resources: Every Act examined in this study emphasized the value of heritage resources 65

66 and clearly prioritized the protection, preservation, and development of those resources. Economic benefits and private ownership of UCH resources are always situated within this framework. For example: The British Columbia Heritage Conservation Act ( HCA ) has as its purpose the protection and conservation of heritage property in British Columbia. (s. 2) This Act applies to shipwrecks, as defined in the Act. The Florida Historical Resources Act, allows the government to enter into contracts with private entities that wish to engage in exploration and excavation of UCH sites. It also permits these entities to retain up to 75% of the objects they retrieve. However, the Act contains a clear and lengthy statement about the important of heritage resources: The rich and unique heritage of historic properties in this state, representing more than 10,000 years of human presence, is an important legacy to be valued and conserved for present and future generations While the combination of private enterprise involvement and preservationist goals could be framed as antithetical, the ideal aspired to is clearly that private entities can be permitted to explore and excavate, under close supervision, as long as the priority behind any such work is the preservation of UCH. There may continue to be a tension between the wrecks that are seen as desirable by treasure seekers, versus those valued for UCH, but these acts place preservation and UCH protection in priority. 2. Definition of specific marine archaeological sites: This designation has the clear advantage of providing the utmost protection to sites that are identified as being highly valuable to a jurisdiction s cultural heritage. For example: Regulations passed pursuant to the Ontario Heritage Act define three shipwreck sites as marine archaeological sites thereby affording these sites special protection under the Act (e.g., no person may dive within 500m of the shipwreck of the Edmund Fitzgerald without a license). These regulations for prescribing marine archaeological sites were established to define clear heritage value criteria for all marine archaeological sites, in order to provide better tools for judging the significance of sites and selecting those that warrant special protection. 3. Definition of specific Exempted or Recreational Diving Sites: Such sites would allow recreational divers to explore shipwrecks and potentially even recover small items from them without need of a permit. The advantage to so called exempted sites is that they pare down the administrative load involved in processing permits, encourage observance of the statute by facilitating compliance and engage the recreational diving community. For example: 66

67 Regulations passed in Massachusetts by the Board of Underwater Archaeological Resources create Exempted sites (i.e. sites that can be explored without a permit). Casual artifact collection is permitted at exempted shipwreck sites. The Ontario Heritage Act also provides for sites and activities that do not require a license. (s. 48) Such sites and activities are to be set out in regulations passed pursuant to the Act. 4. Provision for inspection of sites or enforcement of the Act: For example: Saskatchewan s Heritage Property Act grants powers to an officer to seize a tool or artifact held by an individual suspected of performing archaeological excavation without a permit. The Manitoba Heritage Resources Act enables the Lieutenant Governor in Council to appoint inspectors. Inspectors are then empowered to enter on premises (with the permission of the owner) to determine whether or not a breach of the Act has taken place or is taking place. (s. 16)5. 5. Vesting of title of heritage objects in the Crown: Almost every provincial and territorial Act causes title of cultural heritage objects to vest in the provincial Crown or to be held in trust by a public institution. The only exceptions are Ontario and Quebec. Ontario: The Minister may direct that license and permit holders deposit finds with public institutions to be held in trust for the people of Ontario; the Minister has the right to seize any objects discovered by non permit or license holders. Newfoundland and Labrador: Property in all archaeological objects is vested in the Crown. Prince Edward Island: All objects recovered from an archaeological site are vested in the Crown. Manitoba: Title and right of possession to any heritage object found after the day the Act came into force vests in the Crown; Alberta: Title to all archaeological resources in Alberta vests in the Crown. 6. Creation of a Heritage Council, Advisory Board, Foundation or similar body: For example: Manitoba s Heritage Resources Act creates a Heritage Council whose duty is to advise the minister or Lt. Governor in Council on any matter relating to the Act. Alberta s Historical Resources Act creates a corporation called the Alberta Historical Resources Foundation that is to provide advice to the minister regarding historical resources, as well as acquire such resources and stimulate the public s interest in Alberta s heritage. 67

68 The Northwest Territories Historical Resources Act creates the Northwest Territories Historical Advisory Board, tasked with advising the Commissioner on the administration, preservation and maintenance of historic places and museums, among other things. The Quebec Cultural Property Act creates an advisory body called the Commission des biens culturels du Quebec, which advises the Minister on any question the Minister refers to it, and which may make recommendations on any matter relating to the preservation of cultural property. Massachusetts law creates an expert filled Board of Underwater Archaeological Resources that is responsible for overseeing all aspects of permit issuance and sitedesignation. 7. Clear Definition of the Requirements for a Permit and Obligations: For example: Regulations passed pursuant to Alberta s Historical Resources Act clearly define the types of permit, necessary qualifications and other requirements of the applicant, and subsequent obligations (such as submission of a project report ). For example, the applicant must have written a post graduate thesis in archaeology or anthropology. Regulations passed pursuant to Ontario s Ontario Heritage Act stipulate requirements for each of the three classes of license created by the regulations. For instance, the highest class a professional license requires an applicant to hold a Master s degree and have at least one year of applied archaeological experience; only certain classes of license can excavate an archaeological site. Massachusetts regulations are clear about permit types, and standards for permittees, including archaeological standards that must be adhered to and reporting requirements. 8. Establishment of a heritage register : Many Canadian jurisdictions provide for the creation of a heritage register that records the location of heritage objects and sites, as well as other important information. This register is usually available to the public and is therefore a resource for both amateur and professional historians and the general public of the province. For example: The British Columbia Heritage Conservation Act provides for the creation of a Provincial heritage register. It records: provincial heritage sites, provincial heritage objects and various other heritage sites and objects provided for under the Act. The Yukon Historic Resources Act states that the Minister must maintain an inventory of historic objects found in the Yukon that the Minister thinks to be significant representations of the historic resources of the Yukon. 68

69 Any of these legislative provisions could be incorporated into a new legislative scheme in Nova Scotia in order to improve the protection and promotion of the province s UCH resources. 4.6 Some Non Legislative Lessons Learned of Possible Interest to Nova Scotia 1. Engagement of Underwater Archaeology Society/Local Divers The Underwater Archaeological Society of British Columbia ( UASBC ) provides a good example of this. Since 1975, the UASBC, a non profit group of divers and non divers, has systematically worked to identify, locate, survey and protect many of these historic resources for the benefit of future generations. In 1975, the group began survey work on four wreck sites in the Strait of Georgia. In 1980, they began an ongoing program of regional shipwreck surveys. The surveys evaluate historic wrecks in specific areas of British Columbia, assess their current conditions, and recommend action to ensure their preservation. They have compiled and printed site surveys of the historic shipwrecks in eight areas of the province: the Gulf Islands, Barkley Sound, Nootka & Clayoquot Sounds, Southern Vancouver Island, Burrard Inlet & Howe Sound, Northeastern Vancouver Island, the West Kootenays, and most recently, the Sunshine Coast. The groups have also completed five special studies: "The Search for the Tonquin," "The Ericsson," "Exploring the Lord Western," "The Underwater Heritage Of Friendly Cove and Ghost Ships of Royston." They have published a reference book entitled "A Wreck Diver's Guide to Sailing Ship Artifacts of the Nineteenth Century," written and produced for the sport diver who has an interest in shipwrecks and archaeology. This model may be of use in Nova Scotia, with regard to enhancing capacity and engaging members of the public in resource management activities. 2. Marine Archaeology and Community Based Tourism Another option for consideration would be to use the province s underwater heritage resources for more purposes beyond the provincial museum system, such as for dive tourism or marine parks. Community based tourism is also possible, whereby displays could potentially be created to tell the stories of nearby wrecks. Rather than having the provincial museum taking in all resources, they could be directed to work together with communities to develop new ways of displaying artifacts, telling stories and creating opportunities for tourism and economic growth. One local archaeologist also noted that community based initiatives would also serve to help protect the resources, if they take ownership and get involved in managing and benefitting from the resources around them. 69

70 A government representative noted: These underwater resources are underutilized. There is research potential that we need to realize. We want to find and document the wrecks. Local communities can tell stories about their coastal wrecks and marine history for tourism purposes, and ecotours can be developed in some places. I think we have over emphasized museums. We have a large system here it is overdone compared with other heritage opportunities. 70

71 5.0 ISSUES SUMMARIES AND ANALYSIS The following discussions illuminate the key issues related to the TTA and SPPA and introduce new information regarding what other jurisdictions are doing, as a basis for considering potential options for Nova Scotia. 5.1 Identification of Key Stakeholders Key stakeholders identified as having an interest in treasure hunting related issues in Nova Scotia include the following: Government of Nova Scotia (i.e., DNR; TCH; Intergovernmental Affairs; Treasury and Policy Board; etc.); Government of Canada (e.g., Receiver of Wrecks; Parks Canada); Archaeologists (both heritage conservation and commercial), historians and environmentalists; Non governmental organizations, associations and universities interested in heritage resource management, history, etc.; Recreational and commercial divers; Private sector treasure hunters/salvors and their backers/investors; Coin collectors/numismatists/historians and others interested in buying/owning or selling treasure ; Other countries, in cases when wrecks are claimed under sovereign immunity; The general public (of the Province and beyond, depending on the interest generated by findings of heritage value). These stakeholders can be passionate about defending their often divergent, if not diametrically opposed, views. As improving technologies have increasingly allowed these wrecks to be located and salvaged, conflicts have emerged among various stakeholders. While archaeologists value wrecks largely for their historic and heritage values, recreational divers are motivated by recreation, tourism and/or heritage values. Profit motivated salvors are driven by market values. Collectors may be driven by both commercial and heritage values. The study process involved interviews with a range of these stakeholders as well as many key informants in other jurisdictions. Their views have been incorporated into the issues summaries and analysis subsections outlined below. 5.2 Summary of Legislative and Jurisdictional Issues Discussion of Jurisdictional Issues An area of potential jurisdictional question relates to what constitutes provincial waters. This dispute can have significant implications regarding whether many of the wrecks off of a province s coast 71

72 are federally or provincially owned. This is particularly the case given the considerable expanse of disputed territory that can exist, as defined as the disparity between the furthest limit of the low water mark (which the Federal government argues for as the limit to N.S. territory) and the furthest reach of offshore areas that provinces brought with them into Confederation on July 1, Interestingly, the U.S.A. only relatively recently transferred ownership of abandoned wrecks to the states in 1987 with its Abandoned Shipwreck Act. The States own wrecks that lie within the 3 mile Stateowned offshore limit. Wrecks found beyond that mark would be subject to federal admiralty law (i.e., the law of salvage, which would enable finders to receive a salvaging reward). As various U.S. based stakeholders indicated, admiralty law occasionally does come into play, as many wrecks are found beyond the three mile limit of the ASA s application Legislative Conflicts between TTA and SPPA As has been noted in earlier sections (see s. 3.1, especially s ), the philosophies underpinning the TTA and the SPPA are inherently at odds. The TTA treats treasure which would include historical and archaeological objects associated with wrecks as a natural resource similar to any other embedded resource with economic value (such as minerals). It does not account for the historical or cultural value associated with the resource or the context in which it is found. The SPPA, on the other hand, is a preservation oriented statute. It is focused on conserving and protecting heritage resources like the ones that would be found by TTA license holders. This inherent contradiction leads to an unwieldy legislative regime and permitting system, as well as unnecessary administrative complexity. Further, the existence of the two acts sends mixed signals to the public. Treasure hunters are told by the TTA that treasure hunting is permitted in Nova Scotia, and that shipwrecks and associated objects are primarily an economic resource. The SPPA appears to state the opposite that heritage objects are valued for their archaeological and historical importance and impose conditions on the extraction of the resource (i.e., the requirement for a heritage research permit). Ultimately, however, the interaction between the two acts is confused and both statutes become less effective. (See s for more detailed analysis) Issues Related to Potential New Federal Regulations towards Adoption of UNESCO Underwater Cultural Heritage Convention UNESCO s UCH Convention has not been widely ratified to date, having just received the 20 th signator after seven years in existence. Several of its clauses are the subject of debate, including the following: Article 1 defines underwater cultural heritage as all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years. 62 Critics see this definition as far too broad. Enforcement, it is argued, becomes much more difficult if not impossible if all underwater relics over 100 years are considered UCH. The Titanic is less than 100 years old and would not be covered. Moreover, it is argued that many ships have little or no heritage value, but may have some economic/salvage value. 62 The UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001). 72

73 The underlying assumption that everything over 100 years of age has heritage value flies in the face of reality; Article 2 establishes a principle of in situ preservation as the first option in all cases. In some cases (e.g., along high energy coastlines) where wrecks are breaking up/being degraded, this Article risks having the opposite effect of that for which the Convention is intended, as in situ preservation in 63 these conditions is unfeasible, and heritage is being lost on an on going basis; Articles 9 12 may be at variance with the Law of the Sea (UNCLOS) in creating significantly expanded national coastal jurisdiction from the Exclusive Economic Zone (EEZ) to include the continental shelf. Article 4 abrogates the law of finds. Critics argue that it would eliminate salvage rewards thus, it is argued, undermining the goal of finding underwater heritage in the first place. Article 12, section 5 is interpreted by some to mean that research on wrecks can only be authorized by the state, and that the results of such research will be reported to the state. This interpretation raises concerns regarding intellectual property and the free sharing of information. Recreational divers have expressed concern regarding their access to various sites. These issues may be of relevance to Nova Scotia as Federal Government representatives indicate that they are putting in place preconditions necessary for Canada to be a signatory to the Convention. Under the recently amended CSA 2001, the CSA 2001 enabled regulations to be formulated regarding heritage wrecks as follows: (Authority to Make) Regulations Minister and Minister responsible for Parks Canada Agency (2) The Governor in Council may, on the joint recommendation of the Minister and the Minister responsible for the Parks Canada Agency, [may] make regulations: (a) specifying wreck or classes of wreck that have heritage value; (b) respecting the protection and preservation of wreck or classes of wreck that have heritage value, and providing for issuing permits to access such wreck; 63 [NOTE: One of the authors of the UCH Convention is Robert Grenier, a distinguished Canadian marine archaeologist who was a founder of, and continues to lead, Parks Canada s Marine Archaeology Unit. He has had marine archaeological experience over a 45 year period in Canada, including Nova Scotia, and abroad. 63 He indicated that the regulations being drafted by Parks Canada parallel/are similar to the wording of the UCH Convention and are being refined, but that their finalization/ratification could take an indeterminate time. When asked about the criticisms of the in situ provisions of the Convention, he noted that it is strongly misunderstood that in situ is common in archaeology, and is advocated as a first option rather than an absolute. He cited examples of wrecks where it was recognized that in situ preservation was inappropriate. It is of further note that comments of others indicate that while Dr. Grenier is a highly respected marine archaeologist and researcher, he is not engaged with actual management of UCH.] 73

74 (e) exempting wreck or any class of wreck that has heritage value from the application of any provision of this Part; (f) exempting any geographical area from the application of regulations made under paragraph (b) or (c); and (g) respecting the setting and payment of fees, and the determination and payment of expenses, for services provided in the administration of regulations made under this subsection. As the Parks Canada policy representative explained, salvage law under the CSA gives an incentive to remove items from wreck and to be compensated for it which poses a problem for us. The new draft regulations, reportedly largely paralleling the UNESCO Convention, would eliminate treasure hunting. The new regulations may cover all wrecks, whether in federal or provincial waters, although legal review would be required to confirm this. Government representatives acknowledged that there may be jurisdictional issues that arise between the national and provincial governments. However, the example of a Heritage Railway Stations Act was cited, that enabled the federal government to use/take charge of heritage stations even though they were privately owned. It is expected that the Regulations will be drafted by the end of March, 2009, followed by a consultation process with the provinces. There are a number of issues that could arise for Nova Scotia from these regulations and from the apparent direction that federal government is headed, including the following: There is a question as to whether such regulations will have an effect on wrecks within Nova Scotia territory that are not a navigational or shipping hazard, or in some other way subject to federal jurisdiction (e.g., perhaps by being in federally designated harbours). Constitutionally it would appear that the federal government has no authority to pass laws related to wrecks that are in Nova Scotia s territory and that are not in some way tied to the federal government s jurisdiction over shipping and navigation; If the federal government can pass such regulations the question becomes whether it can assert a right to control the disposition of wrecks in Nova Scotia s territorial water. A recent article in the London Times by a prominent undersea explorer underscores the on going debates about the UNESCO Convention: The adoption of the UNESCO convention would be a disaster, as has been the implementation of a policy of preserving the wrecks in situ (which is often one of watching it rot, with an expensive strategy of monitoring ) 64...This dense, often incomprehensible document is a monster of a legal document so blunt and indiscriminate in its application that it is more likely to harm the maritime heritage than protect it. This convention would put the UK Government under a legal obligation to protect the estimated 100,000 wrecks around its shores, a task it could not begin to discharge seriously in a thousand years. The UK wisely abstained from signing up to the convention, as did every other leading maritime power except Spain Cowan, Rex Shipwreck Policy is Inadequate 2008; 65 Cowan, Rex Underwater Burden, 2008; 74

75 Other controversial aspects of the UNESCO Convention are further addressed in some of the other sections below. 5.3 Analysis of Different Salvaging/Permitting Models Situated Along a Continuum of Permitted Practices Canada, U.S.A., and U.K. One of the purposes of key informant interviews undertaken for the purposes of this study has been to identify what is happening in other jurisdictions. Indeed, Nova Scotia has been found to be unique in its treatment of wrecks much like it would treat a non renewable mining resource by issuing excavation licenses and charging royalties. As discussed in Section 3, all other provinces in Canada have adopted restrictive permitting models that see all finds going to the Crown with little or no economic incentive or reward for the finder, while enabling those who are given permits to excavate and/or undertake research. As is the case with provinces across Canada, the United States Abandoned Shipwreck Act effectively passed ownership of wrecks to the States within state territorial water defined as up to three miles from the shore. The effect has been to enable each State to decide, through its own laws, on the extent to which it places stronger value on the archaeological, recreational or economic opportunities afforded by wrecks. In practice, some states do not permit salvage at all while others have adopted a wide variety of permitting systems and rewards for salvors (See Section 4 and further discussions below). Government officials, divers and/or marine archaeologists operating in these jurisdictions were contacted to determine what the results have been. Among others, it appears that when the economic incentive to find wrecks is removed, treasure hunting and finds tend, at least in terms of official activities, to slow down or stop. For example, a longstanding marine archaeologist who has been heavily involved in Michigan s oversight of wrecks, as well as throughout the Great Lakes and internationally, 66 noted that, in 2001, Michigan changed its law to eliminate salvage rewards. Subsequently, between December 2001 and 2005 there was not one meeting of the State Committee because no permits were applied for. He asserted that the industry went underground. He further noted that recreational divers often take souvenirs from wrecks and do not report it as there is no incentive to and they will not be allowed to keep anything. Others have noted that recreational divers can, and will, remove items from wrecks regardless of the legislation that is in place, and can damage wrecks in the process. As discussed in other reports sections, they need to be brought into the process and trained to work for the common good, as has occurred in some jurisdictions such as B.C.. 66 Ken Vranje. President, Archaeology and Marine Heritage International; President, Michigan State University Centre for Marine and Underwater Resource Management. 75

76 In Florida, there were various approaches taken over time. As reported by Dr. Jim Miller, the former State Archaeologist and Chief of the Bureau of Archaeological Research, NOAA and he (on behalf of the State) developed a permitting system to apply to federally protected areas which allowed exploration based on benefits and performance. In the federal sanctuary, the permit made it simple to search but difficult to salvage: That strategy was developed when it became clear that salvage permits were seen as property that you could use to raise money from investors to explore. Salvage permits were a ticket to raise money. So we made it hard to get one, unless it yields scientific information. We moved the discussion away from legends to some type of scientific research The permitting system is now years old. Some would say it s worked o.k. It hasn t harmed the resource But, from my perspective, it seemed like they spent a lot of time and resources managing treasure hunting which could have been used to do it ourselves Overall, treasure hunting is a threat to the resource. In my experience there s lots of damage to wrecks in Florida from sports divers and storms, but treasure hunting is on a different level Most...involve heavy blowers and there are no good archaeologists with treasure hunters in Florida Such a model may be worthy of consideration for Nova Scotia, as it represents a middle ground, whose aim is sustainable cultural heritage stewardship. In Massachusetts, there is a Board of Underwater Archaeological Resources that is supposed to oversee treasure hunting activities. However, investigations indicated that the Board is minimally funded and has only one staff member at the present time. There is no budget for monitoring of activities undertaken under permit, let alone that undertaken illegally. Permitting fees are token. According to the senior source from the Board, the process for salvors is so costly that there are very few applications that are approved/that proceed. The low level of funding by Government to the Board may owe to the fact that there are relatively few wrecks with treasure believed to be along the State s coastline. British Columbia is touted by various stakeholders as being exemplary of recreational diving that can help to find wrecks. However, discussions with a representative of the main diving society indicated that there are only two wrecks with treasure in the province, and that treasure hunting has not been a major issue. However, there are wrecks of historical importance which the society has been tagging: We know what s there and we can monitor it No law will control recreational diving. There will always be 5% of divers who disrespect any law and there s no doubt stuff has disappeared They tag collectibles to deter divers from taking them. The U.K. appears to have a relatively permissive approach whereby all wrecks within its territorial waters are Crown owned and are covered under the Maritime Shipping Act which entitles salvors to a salvage fee, thus providing a built in economic incentive to search for wrecks. Also, while the U.K. s Treasure Act does not apply to wrecks, it does encourage finders of treasure (e.g., coins washed up on shore) to report it to a coroner, who will provide compensation at fair market value. In other words, under the British laws, there seems to be more economic incentive built into the treatment of what is defined as treasure. Moreover, as was the case of the Sussex wreck, the Government of Britain 76

77 reportedly entered into an agreement with a salvor to recover and share the proceeds of this wreck which had been found in another country s waters The UNESCO Convention Some of the legal concerns with relation to the UNESCO Convention and its possible adoption in some modified form through regulations at the federal level in Canada have been described above. Additional, non legal concerns have been expressed by many stakeholders from a variety of sources (e.g., marine archaeologists, recreational divers, treasure hunters and some government sources) regarding the Convention, and any types of laws that adopt its highly restrictive tenets. The overall concerns were as follows: There is little reason to believe that there is going to be increased public funding sufficient to undertake underwater cultural heritage exploration or research on a scale that would recover significant underwater cultural heritage in the near future. Without some form of exploration/treasure hunting/salvaging many heritage objects may never be found. If the goal is preservation, some wonder how this goal can be realized if there is little or no knowledge of where sites are, little capacity to find them, and no capacity to protect them; Many sites are in high energy fields making in situ preservation impractical as many (though not all) wrecks would likely be further degraded and/or lost forever; There would need to be a significant upgrading of monitoring to ensure that wrecks were not being raided by recreational/other divers, otherwise compliance with the Convention would be meaningless; Each site from political, social, historical and social perspectives is unique. Is it abandoned? If so, what is its best use? Does it really have archaeological significance? Each site should be assessed individually to determine whether there is cultural heritage value, if any, and if so, how best to capture it. Such a broad approach makes enforcement impossible. If you cannot enforce what is on the books, then there is a danger of alienating the stakeholders who follow the rules; One highly experienced marine archaeologist who opposes the UNESCO approach provided the following comments: ``The majority of people who openly support the UNESCO legislation are academicians and bureaucrats, not field archaeologists. Many are simply "managers" who have no archaeological credentials at all...the majority of practicing archaeologists (of my acquaintance, anyway) see the many flaws in the legislation but are afraid to speak out against it because they don't want to jeopardize their jobs, pensions, etc.. I see several weaknesses with the UNESCO plan. For one thing it is quite vague on a number of points, leaving them to be interpreted to fit the interpreter's agenda of the moment. For that reason it can, and I am sure will, become something that can be used as a weapon, either to prevent legitimate exploration and recovery or to favor select parties. 77

78 For another, it is sufficiently restrictive that removes the incentive to actively search for underwater sites. Also, it will make anyone who makes an accidental underwater find think long and hard before they report it. Ironically, parts of it are just as restrictive to governments and universities as to individuals. A resource manager who also opposes the UNESCO approach offers a different set of comments, but reaches the same conclusion: I do not know a single bureaucrat/resource manager who accepts the Convention as written, but I know several archaeologists who do. The resource managers who have to implement this sort of thing understand its problem to the core it is an academic, purist convention that would not come from someone who has to implement it. 5.4 Institutional Structure/Capacity Issues Capacity and organizational issues, which are often critical determinants of the success of any recommended initiative(s), must be factored into assessment of different options proposed to resolve current difficulties. Some of the main issues are described below: Staffing The Special Places Protection Programme has one full time staff person, assisted by part time staff and an administrative assistant, who draws upon expertise from others in the Heritage Department on an asrequired basis. Given the limited resources, the capacity for monitoring activities is negligible. The need to monitor will be a major consideration in any future outcome. This activity relates not only to treasure hunters/salvors, but to the activities of recreational divers and fishermen who may also find, and be in a position to disturb, wrecks and extracts artifacts. Additional staffing commitments include 30 to 50 days, or 12% to 20% of the Curator and Assistant Curator s time, for royalty selection and 3% of the Unit Manager s time for oversight. One of the biggest gaps in capacity cited by stakeholders is the absence of a staff marine archaeologist, who could be instrumental in reviewing applications and documents provided by a salvor and undertaking monitoring functions, among other activities such as working with communities and the dive community Organizational Structure The structural difficulties between the two Departments have been discussed in a previous section. The overarching institutional issue is the structural conflict that has been set up between the Departments of Natural Resources and Tourism, Culture and Heritage by virtue of their administration of two Acts that are at fundamental odds with each other, one treating an object as treasure with economic value, and the other, seeing such objects as having immeasurable heritage value. Suffice it to say that the situation has placed the two Departments overseeing them in a position that generates on going difficulties. 78

79 As can also be seen from Figure 2 2, in Section 2, the Special Places Protection Programme is housed under a different Section (Heritage Promotion and Development) than the Museum Operations Section with which it may have more in common in terms of its SPPA related responsibilities Financial Resources A significant capacity issue relates to the often cited lack of financial resources within government to conserve, study and/or display much of the treasure it retains. For example, the Museum of Natural History does not have the necessary temperature controls to store many heritage objects properly, primarily as a result of a lack of financial resources. The Province no longer has its own conservation lab to undertake preservation functions. One of the main complaints of salvors contacted for the purposes of this study is that while they are required to pay for conservation of items selected by the Province as their 10% royalty, as required under the research permit guidelines, the Province does not have the ability to display most of the material. As a result, salvors argue that the heritage value that is so often cited as the cause of concern among those against treasure hunting is not being realized by the people of Nova Scotia even when objects are within the Province s possession. As an adjunct comment, salvors have noted that Nova Scotia does not have one central cultural heritage museum (i.e., one that tells the historical and cultural story of Nova Scotia), although there are several smaller museums throughout the province. When the possibility of curtailing treasure hunting is raised based on heritage preservation arguments, countering arguments are forwarded regarding the financial inability of the province to translate even those objects recovered through current and past salvaging into heritage value that can be displayed for the appreciation of the people of Nova Scotia. On the other side of this issue, resource managers note that it is normal for only a small percentage of a museum s artifacts to be on display at any one time, and that materials are often used in other ways (e.g., loans; research; etc.). With regard to the financial incentives that are necessary if professional salvors are to be encouraged to locate and retrieve UCH, one source has summarized the issue as follows 67 : Notwithstanding the legitimate concerns of archaeologists regarding salvage standards, it remains the reality that, given the current state of technology, a few profit motivated salvors are the primary finders of historic wrecks. Consequently, barring [them] from salvaging historic shipwrecks will bring about an end to the discovery and salvage of such wrecks in any meaningful number This recognition underscores the necessity of striking a reasonable balance between the importance of establishing proper scientific standards for salvaging and preserving historic wrecks with the need to give salvors a financial incentive to search for them. With regard to who should pay for heritage recovery and preservation, the lack of financial capacity of government at present (and possibly for considerable time in the future) to undertake its own 67 Hallwood, Paul, and Miceli, Thomas J. Murky Waters: The Law and Economics of Salvaging Historic Shipwrecks U. of Connecticut Working Paper (December 2004) p

80 underwater archaeological pursuits is a factor that must be considered when evaluating future options. The economics of heritage preservation are further discussed in Section Operational and Process Issues Lack of Clear Policy Directions and Priorities to Guide Marine Heritage Management Processes In order to guide the entire marine heritage management process, some overarching policy needs to be defined to establish a clear course of action, possibly within a Heritage Resource Management Policy that would lay out the priorities of the government and its commitments to the sector Licensing and Permit Processes The Contract Between Government and Treasure Hunters Licensing and permit processes are a problem in several respects. As noted above, the TTL and heritage permits are issued by two departments and are inherently at odds with one other. On board watchdog archaeologists are supposed to be paid by the salvors, who have different interests in mind. One archaeologist noted, for example, that he had to withdraw his Heritage Research Permit due to the fact that the TTL holder refused to follow his directions, especially with regard to conservation of artifacts. If recovery by the private sector is to be permitted, the permitting process should be reevaluated and streamlined/coordinated to address such problems. Another problem cited is with regard to the fact that TTLs are issued for five year periods. Some stakeholders noted that this period should be reduced to two years, and repeat/additional TTLs should not be permitted unless the TTL holders can demonstrate that they are actively carrying out the activity they have received a license for. It was noted that some TTL holders are simply sitting on large areas and doing nothing, just to tie up the area so that someone else cannot explore. One internationally experienced marine archaeologist based in the U.S. advised that, to place government in a stronger position to control treasure hunters/salvors, there needs to be a detailed contract that states archaeological concerns are paramount and take precedence. Strong penalties for the breaching of such contracts could be instituted Royalty Process Presently, the royalty process involves a negotiation between the government museum staff and a salvor. While a 10% royalty has become the accepted norm (i.e., whereby the government allows a salvor to retain 90% of the treasure recovered in any season), as specified in a TTL, there is no specific percentage split cited under the law. The royalty process is complicated, and, as one government interviewee noted, it has consumed a great deal of time and money, and is always confrontational. It has been noted that while the model of accepting a representative sample worked well when only coins were involved, the situation has become complicated now that heritage objects made of precious metal have come into the mix. Given the loose definition of treasure in the TTA, while the TCH may 80

81 not see certain items as treasure, salvors may be able to claim that they are part of a treasure trove and items with significant heritage value may be lost to the province. 5.6 Economics of Treasure Hunting Economics of Treasure Hunting One of the perennial areas of treasure hunting related disagreement relates to the value of finds. The consulting team has talked to coin collectors around North America, to treasure hunters, divers and government officials in various jurisdictions (U.K., Florida, Massachusetts, Nova Scotia, Quebec, B.C., Michigan, etc.) to try to clarify the situation. The question is not an idle one: One of the questions underlying the whole treasure hunting controversy is whether or not heritage wrecks would be found in the absence of a treasure hunting industry, particularly given the high cost of exploration and the scarce resources of government to do it. Another question relates to the feasibility of charging treasure hunters higher fees, thereby possibly helping to generate Provincial revenues for heritage conservation and museum displays. Is there enough money in treasure hunting, in any event, to justify higher fees? Most of those who fall on the heritage conservation side of the argument argue that claims of treasure from Nova Scotia waters are vastly exaggerated. They claim that treasure hunters are being bankrolled by gullible investors, and that while there may be an occasional find that generates some financial gains, the nature of the ships plying the Nova Scotia coast was not prone, generally, to having high value treasure. In addition, some note that dubious stories are created about wrecks and their treasure content to lure investors on false pretenses. Even sources from outside Nova Scotia (e.g., coin collectors from Florida and Quebec) noted that false stories may have lured investors. On the other side, some treasure hunters are adamant that there millions, even billions, on the ocean floor, claiming, for example, that some warships were carrying gold ingots and/or that WW II ships that were wrecked were carrying $50 million in precious metals. One of the questions that arise in this regard is whether or not recoveries are not being reported, but are being sold on the international market for large amounts. The Cultural Property Export Review Board (CPERB), which monitors and controls exports from Canada of cultural property, indicated that under their Act there is a control list which includes objects received from the water that are greater than 75 years old. The Board has a database that contains every permit issued for items that fall under this definition. The Board tries to keep track of objects being sold, for example, on E Bay. The contact person did not indicate that there is concern regarding illegal sale of treasure related cultural items from Nova Scotia. It would appear that those who claim many treasure finds have been exaggerated are likely correct. One of the most candid of the treasure hunters contacted indicated that he has been working for twenty years and has never found a wreck. He noted that it costs $500,000 a season to explore/salvage and that he has never recovered enough treasure to cover expenses. He has several companies linked to different explorations that are bankrolled by investors from the U.S.. These investors, he noted, have mad money and are looking for bragging rights to say that they are involved in treasure hunting. They invest through financial advisors/venture capitalists, much as they would invest in a penny stock, 81

82 knowing they are taking a risk. He indicated that they know that their return on investment will not likely come from the treasure per se. They know that even gold coins are very common and sell for only $200 or less, meaning it would be hard to generate a high return on such finds unless there are uncommon coins, which is considered unlikely in Nova Scotia waters. Investors, the treasure hunter indicated, are looking for the later documentary, museum exhibit or movie to generate the return on their investment. Whatever the case, treasure hunting is, much like mineral exploration, a high risk venture. While an economically successful outcome is relatively slight, if it occurs a significant reward can be realized, and this potential big payday stimulates many investors. Other salvors also indicated that movies and documentaries are where the most money can be generated. It was underscored that the wreck s story, and the story of the recovery process, are important to investors. The goal is to convert the initial investment in treasure recovery into larger profits through movies or museum displays. As one person noted: There are 26 museums in Europe that would show our exhibits We have already done a docudrama for National Geographic and are negotiating a bigger movie contract. A senior Nova Scotia member of the Canadian Numismatic Association stressed that treasure hunters are increasingly realizing the importance of provenance. He indicated that the value of an item/coin can increase by four to five times if the origin of the coin can be documented. If coins are taken without proper marine archaeological processes being followed, the provenance and greater value of the find is lost. Several of the main coin collectors contacted in North America largely concur with the view that treasure finds, at least in terms of coins, has not been great to date. One collector who handled coins from the Auguste noted the following: The Auguste had thousands of common coins and a handful that were rare, but not priceless...coins can value from $75 to thousands One of the biggest problems in Nova Scotia s case is that the 10% taken for royalties was not what had real value compared to what was left to the treasure hunters, and that you need a knowledgeable person to choose. Government could then auction them On the Auguste, Spanish coins were common, not priceless. When the Auguste evaluation was done, a New York Investor was told it was priceless, but it wasn t. There was $155,000 that was sold The artifacts they re coming up with are worth much more Most buyers are in the U.S. and Europe. There aren t many Canadians A diver on some of the Nova Scotia wrecks indicated that estimates of treasure given by the treasure hunters are way above what s there. The overseer of the Massachusetts Board of Underwater Archaeological Resources also indicated that he has trouble with claims that there may be a return [on investment]. Lots of sites don t have value.the value of treasure shrinks by many magnitudes once it s recovered. Another prominent global coin collector indicated that when asked by investors as to which wreck they should invest in, he says: 82

83 Don t! Salvagers with expensive boats will spend more than they re finding...but, some investors just want to do it for adventure. They don t care. They see it as an investment in history. For those who do care, I tell them to buy coins later, once they re on the market. It should also be noted that with respect to the economics of treasure hunting in Nova Scotia, investments in this area do generate some employment and spin off economic activity (e.g., contract archaeologists; divers; equipment providers; museum workers; etc.), although exact figures are not known Costs and Economic Benefits of Treasure Hunting Government officials from the TCH and DNR were asked to estimate the time that they expend on the treasure hunting industry. The percentages of time seemed to vary from below 10% to up to 20% (for those who decide on royalties) in both departments. They added that at times, legal advice is sought from other departments. As one of those who devote some portion of his time to treasure indicated, it may not be a lot of time, but it prevents me from proactive work, like talking to communities about reporting finds. Permit fees, which go into the government s general revenues, are miniscule. TTL s cost some $500, while those Heritage Research Permits for which a fee is charged are only $100 each. While in kind royalties are also generated through salvors activities, no monetary value is assigned to these resources. Government would not seem to lose a great deal, nor does it benefit a great deal from treasure hunting, in a financial sense. Treasure hunters would argue that there is value generated to the province and its citizens by heritage related finds. However, they also feel that the value of these finds is often minimalized, as most of the items taken through the royalty process are stored away. In fact, salvors typically express their concern/disdain with regard to the disposition of heritage resources that are recovered from wrecks and turned over to museum authorities. Museum officials indicate this is not necessarily true, as there is on going research, loans going on, and materials are widely used and displayed on a rotating basis. Some suggestions for expanded use of the resources have included the establishment of private and community based museums, and the development of travelling displays. The Parks Canada investments in the Louisburg wrecks have undoubtedly contributed to tourism revenues generated for Cape Breton and the province. Recreational diving for wrecks also likely generates some income for the province. However, it has been reported by various divers that recreational divers and dive charter operators are taking tourists out to wrecks and enabling them to take artifacts, thereby possibly taking valued items out of the province Royalties As described in Section 4, there is a considerable range of approaches taken by governments to royalties. In Massachusetts, for example, permit holders are entitled to 75% of what they recover, while in Florida it is 25%. In North Carolina there is some flexibility that enables the State to keep over 25%. In the U.K., under the Treasure Act (which applies to treasure found along the shoreline and on land), 83

84 treasure is vested in the Crown, but finders are provided with a sufficient size of reward to encourage reporting based on a Valuation Committee assessment of fair market value. Its Merchant Shipping Act which does apply to wrecks follows the law of finds, such that finders are paid a salvage fee. In the other Provinces of Canada and several States in the U.S.A., there appears to be little or no financial reward involved for finders. Certainly, should Nova Scotia continue to have some sort of reward regime, the 10% royalty to the province would seem to be exceedingly low in comparison to other jurisdictions. 5.7 Determination of Resource Significance Several interviewees, including salvors, government representatives and archaeologists, acknowledged the fact that not all wrecks are historically significant. It has been suggested that a process and criteria should be established to identify those marine resources/sites/wrecks that are historically significant. There are many different treatments of significance under the laws of different jurisdictions. As noted earlier, the UCH Convention sees significance as anything submerged for 100 years or more. In the United Kingdom, the Treasure Act defines treasure as including objects that are at least 300 years old, and goes on to further narrow the definition so that items not considered to have cultural heritage value are excluded. As one archaeologist noted: Maybe the significance of wrecks should be looked at more. Some are historical and should be protected no matter what treasure may be there. Others may have no need for protection. Most archaeologists are opposed to selling things, but why can t we make a distinction based on significance? If we could just get it right let people recover then have first class archaeology on site. Coins could be sold, for example, as a trade off for excellent quality archaeology. This type of approach was also described in the report titled The Vision for Marine Heritage Resource Management in Nova Scotia by the Nova Scotia Museum, that stated 68 : The most challenging task is to determine what is and isn t considered important. The simplest management option is to use of the extreme characterizations of our marine heritage resource, that is, everything is important, or nothing is important. For most Nova Scotians the obvious position lays somewhere in between these extreme [italics added]. The report goes on to state, as its first Guiding Principle, that not all shipwrecks can be considered important archaeological and historical remains. A process to identify significance would require the expertise of a marine archaeologist. In addition, some type of regulation would be required, whereby criteria for such designations would be developed. A useful Discussion Guide developed by Ontario s Ministry of Culture has been prepared in this regard Nova Scotia Museum, The Vision for Marine Heritage Resource Management in Nova Scotia,

85 As described elsewhere in this report, some sites could be designated as Special Protection Areas under new/revised legislation/regulations. Precedent for this type of designation exists in Nova Scotia, in regard to, for example, the designation of the Parrsboro fossil site, which is exempt from any mineral exploitation/mining. 5.8 Underwater Cultural Heritage Sustainability Issues Widely divergent opinions exist as whether wrecks are increasingly being destroyed by natural processes or whether most are in a stabilized state. The issue is a very important one, since if one determines that degradation is occurring over time, then an in situ /highly restrictive approach may be counterproductive as it would see on going dispersion and degradation of the heritage resource, at least in the absence of significant public funding to support exploration and documentation of wrecks. Researchers have reported that, typically, the greatest amount of damage that occurs to shipwrecks from natural forces takes place during the first few decades after a ship has settled on the seabed. 70 As one source has noted: Material deposited in water seldom disintegrates completely. Normally there will have been a period of destruction and decay in which much may be lost. Thereafter the remainder settles and becomes gradually buried through slow inter action with environmental processes, resulting in the so called wreck formation which includes natural accumulation as well as man made material. This wreck formation may be preserved underwater almost indefinitely. 71 A report by members of the Nova Scotia Archaeological Society states 72 : Time often serves to protect these wrecks through natural occurrences. Although the ocean is a dynamic environment, over time a shipwreck is enveloped by silt, sand and mud which provide sufficient stabilization and preservation. It is when they are brought to the surface and not afforded proper storage and/or conservation treatment that their integrity is most greatly compromised. Robert Grenier, Parks Canada s chief marine archaeologist, argues that after a few years wrecks will settle and stay in 3 D, although some structures may crumble from wave action over a couple of centuries. Overall, he noted that, while not denying there can be damage, the effect of the damage is not as dramatic as what some say, and for archaeologists there is often information to get from wrecks, even debris fields. 69 Ontario Ministry of Culture, Discussion Guide: Development of the Regulation for Prescribing Marine Archaeological Sites, October Heather Pringle, Finders Keepers, Canadian Geographic, vol. 127, iss. 2, p L. Van Meurs, Legal Aspects of Marine Archaeological Research, Acta Juridica, 1986, 83 at 84. See also Robyn Frost, Underwater Cultural Heritage Protection, Australian Yearbook of International Law, vol. 23, 2004, 25 at MacIntyre, A. and S. Beanlands, History for Sale: The Treasure Trove Act in Nova Scotia, 2008, p

86 A prominent Florida contact who was in charge of the State s Division of Historical Resources and oversaw marine permitting for exploration for many years also argues that shipwrecks are better left alone, stating that they take care of themselves even in high energy environments and reach a dynamic equilibrium. 73 A coastal geoscientist with the Geological Survey of Canada who studies Nova Scotia s near shore coast 74 noted that: Depth is the main determinant. Closer to shore, wrecks can get buried and then exposed by wave action and sediment transport. Wave action can have an effect up to 40 m. deep. In some places along Nova Scotia s coastline, 40 m. depths can be reached very close to shore, whereas, in others, this can be a long way off shore ; Many wrecks would likely have sunk on shoals close to shore where high energy conditions are often prevalent. (Another source, a provincially based archaeologist, has also noted that most wrecks are located in high energy environments, with many located in the same places due to the perpetually rough conditions; A lot of wrecks may now be in sandy areas where the sand comes and goes. However, even if covered by sand for some period of time it may not always be protected if left in situ; Much of Nova Scotia s near shore, from the tip of Cape Breton to Yarmouth, is characterized by boulders along the bottom and is highly subject to hurricanes and strong wave action. Inshore, there is a harder bottom, which means wrecks would be broken and scattered boulders and wave action act has a grinding, lapidary effect. He noted that: I d go out on a limb and say that most wrecks are on shoals that are harder than softer a mix of boulders and rock Some get washed towards sand near shore and get preserved for awhile ; Parts of wrecks can get transported considerable distances, though likely less than a kilometer; The coastal area along the Gulf of St. Lawrence present problems, as ridges of sea ice move out of the Gulf and scour the bottom of the sea bed, threatening wrecks; Overall, the scientist portrayed a very high energy coastline, albeit with some sheltered bays, that are a danger to the long term condition of many, though, of course, not all wrecks. Several marine archaeologists and salvors also argue that wreck resources will simply continue to be destroyed if they are left in the ocean and exposed to tide and time. 73 Dr. Jim Miller, Former State Archaeologist, Chief of the Bureau of Archaeological Research, Florida Department of State. 74 Robert Taylor, Geological Survey of Canada, Bedford Institute. 86

87 One diver noted that his operation has recorded video evidence over a period of years that illustrates the extreme damage that occurs as a result of not only wave action, but also icebergs and huge boulders that are tossed around in the sea; A British Columbia based marine archaeologist who is president of the B.C. Underwater Archaeological Society cited a photograph sent by a Nova Scotia diver that showed how ground up the Fantome wreck site was, and emphasized the need to document wrecks [so that the archaeological value is not lost]. Another experienced marine archaeologist who has worked with salvors in Nova Scotia noted that most of the coastal area is open sea with some protected bays. In these protected areas where there are intact wrecks, they were found and stripped of metals years ago. In the 1960s with tough economic times, many wrecks were scrapped for metals, so you won t find much now. It s already been melted down. A Cape Breton based treasure hunter depicted the situation as follows: Most ships sank right at the coast. The vessels are at 60 to 100 feet most in shallow waters If you didn t know what you were looking for you would never find them. They re all broken up. Most areas at the bottom are hard and rocky At Cape Breton Point, just prior to Chameau Rock, and just prior to a hurricane, you could see the bottom for 1,000 feet off shore and the breakers were 50 feet (giving an idea of the grinding power of the sea). We ve seen 5, 10 ton boulders being moved along. You never see any wood. That s long gone. It is apparent that those who have a highly protectionist perspective tend to argue that degradation is not so serious, and that even where there is damage or degradation wrecks can still yield archaeological information. They argue that treasure hunting is undertaken at the expense of such information. Nevertheless, there appears to be strong evidence that the particularly high energy nature of Nova Scotia s coastline puts many wrecks at risk, despite some likely site specific cases where they may be sheltered from the high energy conditions and are offered some measure of protection. Further scientific evidence is required to provide definitive answers with regard to this subject. 5.9 In Pursuit of Best Practice Based on conversations with many stakeholders, it would appear that there is no one marine heritage resource management system that could be considered ideal. However, there are aspects/components associated with the variety of different management models that do appear to represent best practice. Various jurisdictions, for example, have legislation in effect that allows the designation of Special Protected Areas which could be adopted by the Government of Nova Scotia to disallow treasure hunting/salvaging in certain places of high heritage interest. The U.K. Treasure Act, although it does not 87

88 apply to wrecks, offers a Code of Professional Conduct to guide those who find treasure. While British Columbia offers an often cited recreational diving model, it does not have the pressure associated with treasure hunting that Nova Scotia has, because of a lack of wrecks of interest in this regard. Similarly, while Massachusetts has an Oversight Board, there seems to be so few wrecks that the Board is not funded sufficiently for it to monitor treasure hunting. While some locations may have more stable coastal conditions that allow in situ preservation more readily, Nova Scotia has a very high energy coastline, generally speaking. The Florida model noted earlier in this section, that makes it harder and more expensive for salvers to get licenses and places the highest emphasis on scientific pursuits, may offer a possible direction. Some might say that the UNESCO UCH Convention is best practice. However, it certainly meets with criticism on many fronts, as discussed earlier. It appears, then, that each jurisdiction is left to develop a system that best meets its history, its particular coastal conditions, its legal conditions and precedents, and its fiscal and institutional realities. Certainly, Nova Scotia has its own unique circumstances. While there are reportedly 50,000 wrecks in the entire U.S.A., Nova Scotia may have in excess of 10,000 on its own. The study results indicate that given circumstances in Nova Scotia the province may be best to avoid both extremes with regard to a new marine heritage management system (i.e., either a strong UNESCOtype model or an open ended situation where treasure hunters can operate in ways that are detrimental to heritage values), and instead, assemble a working system that best meets its needs. Various options in this regard are summarized and evaluated in the following report section. 88

89 6.0 DESCRIPTION OF ALTERNATIVE SCENARIOS TO ADDRESS TREASURE HUNTING AND UCH IN NOVA SCOTIA 6.1 Some Initial Conclusions Framing Alternative Scenarios Development Following are conclusions that have emerged from findings of the preceding sections and which have been factored into the elaboration of alternative scenarios for the future: The majority of jurisdictions reviewed for the purposes of this study identify cultural heritage preservation as an overriding goal; The Treasure Trove Act and the Special Places Protected Act do not adequately protect cultural heritage preservation values; The institutional framework created by two conflicting Acts is problematic and has created an undesirable and untenable situation where two departments find themselves at odds with each other; Nova Scotia s overarching provincial policy (see Section 2) which advocates using resources wisely and providing win win situations, is consistent with a scenario that allows some level of salvaging, to the extent that it creates conditions for protection of UCH and some sort of sustainable approach to salvaging; There is no one approach identified from review of other jurisdictions that represents an absolute ideal for Nova Scotia. Other jurisdictions have developed systems based on their individual histories and particular coastal and legal conditions and precedents. For example, there is a wide variety of approaches assumed by various States within the U.S.A. While perhaps similar in many respects, the other Provinces of Canada also vary in a number of respects, with each shaping their approaches to meet their specific circumstances; Certainly, Nova Scotia has conditions and circumstances that justify it also shaping its own unique approach: While there are reportedly 50,000 wrecks in the entire U.S.A., Nova Scotia may have in excess of 10,000 all by itself, suggesting that special treatment may be in order, in order to manage the recovery of some of this important marine dominated cultural heritage and history. While some jurisdictions (e.g., B.C.) may have wrecks, they do not generally have treasure and do not face the salvaging pressures as Nova Scotia does. While some locations may have more stable coastal conditions that allow in situ preservation more readily, Nova Scotia has, in many areas, a very high energy coastline. The sustainability of UCH may, in many cases, be lost without some level of recovery; 89

90 The review of other jurisdictions practices has identified some lessons learned that may be suitable for Nova Scotia. These have been incorporated for Nova Scotia s consideration within the scenarios elaborated later in this section; While there are arguments made to support the extreme points of view at either end of the treasure hunting/preservation spectrum these sometimes appear to be inaccurate or exaggerated. Such entrenched positions have, to at least some degree, created a lot of myth and served to impede discussions towards identification of practical solutions. It would appear that the truth often lies somewhere in the middle, as indicated by the following examples: o o o o Destruction or preservation of resources under in situ model: Based on triangulation from many different sources, there is little doubt that Nova Scotia s coastline is high energy in many places, and can damage and degrade wrecks, many of which are located within these high energy areas close to the shoreline. In some places, where high energy conditions do not exist, wrecks may be intact/not subject to significant degradation. In some instances, wrecks may be protected by sand over long periods of time. In other instances, even those wrecks currently protected by sand may be exposed to degradation later. Conditions vary, having implications for the long term sustainability of some UCH; Magnitude/value of the resources that may exist: Despite claims that there are millions or even billions of dollars in value lying in wait under the ocean around Nova Scotia, information gained from several sources indicates that treasure hunting has not yielded many large finds in Nova Scotia s waters to date. Treasure hunting has been fuelled by investors who are willing to assume high risk for the adventure and bragging rights. There will likely be money to fuel future salvaging efforts whether or not wrecks have valuable treasure. In addition, the greater value of treasure may often be in the documentaries, museum displays and movies, underscoring the fact that it is in the economic interest of some salvagers to preserve and document the UCH sites to ensure provenance and integrity of the story to be told; Attitudes of salvors: Some treasure hunters are solely in it for the money and do not care about cultural heritage preservation, thereby damaging the reputation of salvors as a whole. Others, while having an economic motivation, appear to have much greater respect for heritage, and see the value of a find being dependent on provenance, and some capturing of heritage. Some have contributed to museums and have written extensively about their finds; Disposition of recoveries: Some may argue that salvors are not on the good side of cultural heritage preservation, and in some cases this may be true. Yet there is also some validity to the argument that the cultural heritage that is being recovered is not always being presented to the public in a way that would enable it to benefit, suggesting that government, too, whether provincial or federal, may not always be dedicated to cultural heritage management in the way that it could; 90

91 o Significance of resources: Some, but not all, wrecks will have cultural heritage value. Some could have value and be younger than 100 years, while others that are well over 100 years old may not have UCH value. Other jurisdictions have made considerable effort to define criteria that will help to distinguish what may, and may not, have heritage value. Again, a broad brush all inclusive approach does not seem to be warranted. Within the context of the preceding sections and these preliminary conclusions, various alternative scenarios are introduced and evaluated, in the remainder of this section. 6.2 Use vs. Non Use of Marine Heritage Resources: Alternative Scenarios along a Use/Non Use Continuum Figure 6 1, following, provides a way of characterizing the full range of options available to address treatment of underwater wrecks. These options can be thought of as being located along a continuum, from use (unrestricted exploitation) at one end to non use at the other. Under an extreme use scenario, for example, the resources would be widely open to exploitation by anyone, while towards the other end of the scale would be a UNESCO UCH Convention oriented non use /in situ scenario. (There could be an even more protectionist position that the UCH Convention, theoretically, which would disallow any activities related to a wreck site. The UCH Convention does allow for some use, under very restricted conditions, for research, for example. In addition, while in situ is a first principle, the Convention, according to one of its authors, Robert Grenier, is intended to be flexible sufficient to allow for recovery of a wreck if it is endangered, i.e., to override this first principle.) 91

92 92

93 The Figure approximates, in a very general sense, where various jurisdictions currently exist along a use to non use continuum, relative to one another. Nova Scotia, for example, though not epitomizing totally uncontrolled exploitation, is the furthest of any jurisdiction studied towards the use end of the scale, while the UNESCO in situ model would be furthest towards a non use end of the continuum. In terms of ownership of objects taken from shipwrecks, for example, Nova Scotia is unique by virtue of the TTA and the royalties provisions that enable their ownership by the private sector. The U.K. s Protection of Wrecks Act and the National Heritage Act both provide for the designation of certain wrecks that are deemed to have heritage or archaeological value, which suggests that economic incentives operate sideby side with the protection of designated sites. (More work would need to be undertaken to determine where the actual balance is between economic and protection related priorities.) Other jurisdictions such as Massachusetts and Florida employ permitting systems that reflect increasingly restricted searches, as well as higher percentages of finds remaining with the State. Most provinces in Canada are located further to the right, as they do not permit private salvaging, although they do allow recreational diving under certain conditions. Quebec is the only other province besides Nova Scotia that permits a finder to keep it, where an object is found on private land. Recognizing the many options engendered by this continuum, the aim of this study is to propose alternative scenarios for consideration by the Government of Nova Scotia and to analyze these for their benefits and costs and implications for the Province. Based on the findings described in the preceding Sections of this report, there appear to be three scenarios: Continuation of the status quo: While it is recognized that the status quo is undesirable, it is analyzed in order to provide a point of reference for comparison with other scenarios; A middle ground controlled private sector involvement scenario based on the adoption of a stronger heritage conservation philosophy with integration of a number of features derived from other jurisdictions that allow for some level of well managed private sector involvement. The effect of the introduction of such features is to move this middle ground option towards UCH protection by adding measures that create greater control and oversight; No commercial salvaging/limited of UCH: The third option is one that approximates, in many respects, the aims of UNESCO s UCH Convention. To fully understand the three scenarios, from status quo, through controlled private sector involvement (with its various optional features) to the no private salvaging scenario, a description is provided of each on the following Table, with respect to: Legal, policy, definitional and ownership characteristics; Protection/recovery and marine archaeological modalities; Institutional oversight; Operational processes such as permitting; Financial considerations; Disposition of finds, if any. 93

94 The three alternative scenarios are: Scenario A: Maintenance of the Status Quo would involve continued oversight by DNR and TCH as mandated under the TTA and SPPA, and would reflect one of the most permissive approaches to salvaging of any jurisdiction reviewed. Scenario B: Controlled Private Sector Involvement with Strengthened Management and Conservation Mechanisms: Overall, this Scenario maintains some level of involvement by the private sector, but assumes the integration of a number of changes that are intended to enable a sustainable stewardship by the province with regard to the recovery of UCH. It provides possible options for generating increased funds from the private sector to offset costs related to UCH management. Features are drawn from other jurisdictions (e.g., assignment of Provincial Marine Archaeologist to direct activities; establishment of Standing Offer Contract Archaeologists who will work on board salvors vessels; designation of marine sites of special significance, as is done in Ontario; possible establishment of a Heritage Resource Fund, like in Newfoundland; possible provision for a voluntary Oversight Board ( Massachusetts); a programme to use recreational divers, from the B.C. model; increased fees/increased restrictions on salvagers, drawn from the Florida model). This Scenario requires significant overhaul of current legislation. Scenario C: No Commercial Salvaging and Limited Use of UCH: This Scenario is intended to eliminate all commercial salvaging, to maintain in situ treatment of wrecks as a first priority, and to permit, under controlled circumstances defined by the province, such activities as research, recreational diving and underwater tourism. Figure 6 2, following, depicts the approximate location along the use to non use continuum of the three scenarios: 94

95 A more detailed description of the three Scenarios is further elaborated on the following Table, followed by an evaluation of their strengths, weaknesses and implications in Section 7. 95