Good morning. I want to thank the committee for its invitation.
I'd like to focus my remarks on the need for the Government of Canada to take legislative action respecting built heritage and archaeological resources under federal jurisdiction.
When I retired from the federal public service in November 2003, a single bill containing two proposed acts—one dealing with national historic sites, the other dealing with other types of historic places and archeological resources—was in the advanced stages of drafting. It was my hope and my expectation that this bill would be introduced into the House of Commons sometime during 2004. This seemed a reasonable expectation, especially given the 2003 report of the Auditor General, which stated that federal built heritage was at risk because of shortcomings in the legal protection framework, and that there was a need to reinforce the legal protection framework. The stars, as they say, seemed to be aligned for the passage of legislation that would finally bring the federal government up to the level of the provinces and the territories and a long list of other countries that have comprehensive legislation dealing with historic places and historic resources.
Since 2004, I have searched every Speech from the Throne and every federal budget upon its release—you can do that in retirement—for some signal that legislation was imminent. I would not be here today had those searches not been in vain. I don't think I am the only person who has ever wondered why it is that the Government of Canada has sponsored and passed comprehensive legislation dealing with national parks, national marine conservation areas, national museums, wildlife, migratory birds, species at risk, and general environmental protection—to cite only a few examples—but there is no comprehensive federal legislation—with the emphasis on comprehensive—dealing with national historic sites and historic places. To be sure, there is legislation on heritage lighthouses and heritage railways, but significantly, both were initiated by private members, whereas the former were all government bills.
This is not to say that there are no statutes that deal with historic sites. In fact, there are three: the Historic Sites and Monuments Act; a single section of the Canada National Parks Act that deals with some national historic sites administered by Parks Canada; and the Parks Canada Agency Act. However, each of these statutes focuses on particular aspects of national historic sites, and none provide the systematic or comprehensive type of statutory protection that is required.
Why legislate? Parliament is the highest policy-making authority in the country in respect of matters falling under federal purview, and legislation is the highest expression of that policy-making authority. It is essential that Parliament legislate in the area of built heritage in order to signal to Canadians, as well as federal departments, agencies, and crown corporations and other orders of government, that the federal government values this heritage. Policy that is not expressed in, and hence sanctioned by, legislation does not possess the same degree of credibility, stability, or predictability as legislation, not only outside government, but equally important, inside government as well.
Those of us on the historic sites side of Parks Canada have lived through not having good legislation. Legislation is essential to provide a statutory basis for the expenditure of public funds on heritage, not only by the Parks Canada agency, but also by other federal institutions and entities that have significant custodial and other responsibilities for built heritage, whether national historic sites, federal heritage buildings, or archeological resources.
The Federal Real Property and Federal Immovables Act states that custodians have the right to use property “for the purposes of that department”. Really the authority to spend money is only for the purposes of that department. The act goes on to say “subject to any conditions or restrictions imposed by or under this or any other Act or any order of the Governor in Council”. Custodians are subject to conditions and restrictions relating to the protection of the natural environment. This has been done through other federal legislation. They are not subject to any legislative obligations relating to the conservation of the federal built heritage.
Legislation is also required for federal credibility. The Government of Canada is the only jurisdiction in this country that does not have legislation to protect in a systematic manner historic places and archaeological resources that fall under its jurisdiction. The federal government needs to get its own house in order if it is to be a credible actor in this field. The federal government has long been strong on the rhetoric of heritage conservation, but it remains the only jurisdiction that has not legislated effectively in this area.
At the international level, Canada compares poorly with other countries, such as France, the United States, the United Kingdom, Australia, and others, in respect of cultural heritage since all these other nations provide statutory protection for their historic places. Indeed, one might say that providing statutory protection for the nation's most important historic places is considered a sign of national maturity. In this regard, Canada's immaturity is strongly evident.
What needs to be done? Briefly, here is what such Canadian legislation needs to accomplish.
In the case of national historic sites, there should be a national historic sites act. This new federal act would incorporate relevant provisions of the Historic Sites and Monuments Act and section 42 of the Canada National Parks Act. Most significantly, the national historic sites act would be the means for implementing Parliament's 1998 declaration as expressed in the preamble to the Parks Canada Agency Act that “it is in the national interest...to ensure the commemorative integrity of national historic sites”.
Among other things, it would achieve that by requiring federal custodians of national historic sites, including Parks Canada, to conserve such sites in accordance with the “Standards and Guidelines for the Conservation of Historic Places in Canada”; to communicate the reasons that the national historic site was designated; and to require that the heritage values of the site, including those not related to the reasons for designation, be respected in decisions and actions affecting the site. In reality, there is no reason that government departments, agencies, and crown corporations that own national historic sites and operate them for non-museological purposes—in the case, of course, of federal sites not administered by Parks Canada—cannot operate within the construct or the concept and framework of commemorative integrity.
Federally owned national historic sites represent about 25% of the total number of national historic sites in this country. The rest, all of which have been designated by the Government of Canada, fall under provincial or territorial jurisdiction, including most privately and publicly owned national historic sites. A new national historic sites act needs to address these national historic sites in a manner that scrupulously respects the jurisdiction of other orders of government. It can do so by containing a provision prohibiting the federal government from undertaking action that would adversely affect the commemorative integrity of national historic sites that fall under the jurisdiction of another order of government. This would be no mere window dressing, as many federal activities have the potential to adversely affect these sites.
I would now like to turn to the proposed historic places act, which should, among other things, provide a statutory foundation, as has been mentioned, for the Canadian Register of Historic Places and for the “Standards and Guidelines for the Conservation of Historic Places in Canada”, both of which are pan-Canadian instruments essential to the long-term conservation of historic places in this country. The act would provide a legislative regime for the protection of archaeological resources on federal lands, including federal lands under water. The federal government is the only order of government in Canada without such a regime. It would provide statutory protection for federal heritage buildings and for world heritage sites under federal ownership, and it would protect other world heritage sites from federal actions having an adverse impact on the universal value of world heritage sites.
In the time available, I have only been able to touch on some of the highlights of what should be in the legislation. Much fuller detail would exist in the draft legislation that was prepared 14 years ago, and additional issues and needs have indeed probably arisen since then that would also need to be addressed. My principal objective has been to emphasize that legislation is the only way to provide the essential and necessary legal infrastructure to ensure that Canada's most important historic places and archaeological resources are protected for this and future generations. In the absence of such action, Canada will remain a laggard among nations.