Transport Committee on March 19th, 2018

[Ellen Burack]

There are important changes that Bill C-64 introduces when a wreck is identified. In the past a salvor could get in there already before notifying the receiver of wreck. Now they cannot touch the wreck before going to the receiver of wreck and getting the okay to do so. We have built into the new legislation a slowed-down approach that would help assess whether or not there's an issue here that needs to be addressed.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you. That's all I have.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Ms. Sansoucy, you have two minutes.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you, Madam Chair.

In 2004, the United States introduced the Sunken Military Craft Act, which seeks to protect sunken military vessels and aircraft, and the remains of their crew, from unauthorized disturbance.

The website of the National Oceanic and Atmospheric Administration lists 430 shipwrecks and sunken aircraft are protected in the national marine sanctuary program.

Several numbers have been mentioned since the beginning of the meeting, but I'm having a hard time linking these numbers to what is happening here.

How do we know how many shipwrecks and sunken aircraft are protected by our current legislative instruments and Canadian federal government programs? I get the impression that I can get a lot of numbers from elsewhere, but there are none about Canada.

[Ellen Bertrand]

It's because there are no inventories or databases of shipwrecks that have federal legal protection, as there is no federal legal protection at this time. The numbers we gave you earlier are from research done by my colleagues at Library and Archives Canada and by historians who estimate the number of shipwrecks that are currently in Canadian waters.

You may be able to find some information in provincial and territorial databases and directories. However, very few wrecks have been designated by the provinces and territories. For example, the RMS Empress of Ireland , in Quebec, is now considered cultural property, because extraordinary measures have been taken to designate this site and include it in the directory

Unfortunately, there are no numbers because there are no inventories, because there is no federal protection right now.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

If there are no inventories, what work is leading to the regulations?

[Ellen Bertrand]

Yes, that's it.

[Marc-André Bernier]

In fact, we don"t have an official inventory that we need to build as part of this work. However, over the years, for 50 years, our team has accumulated a lot of knowledge about wrecks. We currently have 67,000 marine accident records. This doesn't mean that there are so many wrecks. Of these, we have determined that more than 800 wrecks would be heritage, but work is still to be done

In Canadian waters there are probably 30,000 to 40,000 shipwrecks, whether it's the Great Lakes, the St. Lawrence or the coast of Canada. Our history is maritime. So we really have huge potential.

With regard to military wrecks, our records show that these vessels come from 134 countries, and their sinking can date back to the time of the colonies.

[The Chair, Liberal, Judy Sgro]

Thank you all very much for your information. I think you can see that the committee is very much taken with this issue, so we're looking forward to being able to do some good work on this in a short period of time.

We will now suspend for a moment while our next witnesses come in.

[The Chair, Liberal, Judy Sgro]

I'm calling back to order the meeting of the Standing Committee on Transport, Infrastructure and Communities. Pursuant to Standing Order 108(2), we're doing a study of ocean war graves.

With us as witnesses today we have retired Captain Paul L. Bender; and Patrick White, founder and executive director of Project Naval Distinction. Welcome to you both. We're very glad you were able to join us today.

Mr. Bender, I can open the floor to you for your opening remarks, if you'd like.

[Captain, N) (Retired) Paul Bender (Capt(MN) (Ret'd), As an Individual]

Good afternoon, Madam Chair and members of the transport committee.

Inasmuch as my colleague, Vice-Admiral Denis Rouleau, former vice-chief of defence staff, has eloquently articulated the case for ocean war graves on my behalf at the committee's meeting on February 7, it falls to me only to reinforce his urging that the Government of Canada should recognize and acknowledge the concept of ocean war graves as I have defined it in the various documents I have submitted, and should take appropriate measures that will protect them from unscrupulous pillaging specifically, and unauthorized interference generally, thereby according those sailors whose remains and personal effects are entombed in their ocean war graves the respect and gratitude they have earned and deserve, and ensure that they will never be forgotten.

In his mandate letter to the newly elected Minister of Veterans Affairs, the Prime Minister wrote, “Veterans and their families have earned our respect and gratitude. Veterans should not have to fight their own government for the support and compensation they have earned.” For our sailors, there are no flowers among the crosses row on row, no pristine, manicured cemeteries. However, there is a dedicated naval cemetery in Iceland for the 14 who were lost in the grounding of HMCS Skeena in 1944. Otherwise, the final resting place for our sailors is somewhere in the twisted wreckage of the ship in which they served. Surely the most horrible thing to contemplate is the compartment where many of our sailors were and still are trapped because the escape hatch was and remains forever jammed shut due to a twisted bulkhead.

I've been fighting my own government for the past five years on this issue, and for the respect and gratitude of which the Prime Minister spoke, not so much about compensation, at least in monetary terms, but for the recognition and acknowledgement of the concept of ocean war graves and the action to make this so. The achievement of the foregoing objective will no doubt require legislative action of some sort, while keeping in mind that warships are state vessels and remain so until the state informs the international maritime community to the contrary. Although merchant ships are not warships, in one case at least, a merchant ship was given equivalency to a warship. This occurred when descendants of sailors who were lost pleaded that at the material time, the merchant ship in question was defensively armed and in military service. See the decision of the U.K. Appeal Court with regard to the SS Storaa, October 5, 2006. The case of the merchant ship Avondale Park is unique, as far as I know, in that this Canadian flag merchant ship, torpedoed and sunk with loss of life one hour before the beginning of VE Day, has since about 1960 been under the protection of the Royal Commission on Ancient & Historical Monuments of Scotland.

When Vice-Admiral Rouleau was asked which of the French heritage code and the U.K. Protection of Military Remains Act, 1986, he preferred, no doubt recalling my successful dealings with the Republic of France, he naturally chose the latter. That was because my negotiations with the Republic of France respecting the Canadian shipwrecks HMCS Athabascan and HMCS Guysborough, which rest in France's exclusive economic zone, were successfully concluded within a time frame of only five months. There was nothing more to discuss. In other words, that mission was accomplished.

That is not the case with respect to the negotiations with the Royal Navy, which administers the U.K. act previously mentioned, concerning the wreck sites of HMC ships Alberni, Trentonian, and Regina, which lie in U.K. territorial waters, as do several U-boats whose torpedoes sank them and which are protected by the U.K. act at the request of the German government.

Negotiations with the Royal Navy were close to a successful conclusion nearly two years ago, but they were brought to a screeching halt upon the transmission of the following email dated August 23, 2016, from the office of MP Karen McCrimmon. It states in part, “I am following up on the request to our office to provide a letter to the British High Commission regarding sunk warships. The Government of Canada will not be providing a letter in support for this project.”

I respectfully draw the attention of the committee to article 12 of the 9th commission of the Institute of International Law, on war graves:

Due respect shall be shown for the remains of any person in a sunken State ship. This obligation may be implemented through the establishment of the wreck as a war cemetery or other proper treatment of the remains of deceased persons and their burial when the wreck is recovered. States concerned should provide for the establishment of war cemeteries for wrecks.

Canada is not, to my knowledge, a signatory of the Institute of International Law. Absent enabling legislation respecting warships, perhaps the U.K. Protection of Military Remains Act of 1986 could be deemed to apply in and be the law of Canada mutatis mutandis. Precedent of such action may be found in subsection 5(2) of the Canada Prize Act, RSC 1970.

Consideration should also be given to the wording in the following: the Criminal Code RSC 1985, chapter C-46 at section 182, and the Cemeteries Act (Revised) RSO 1990, chapter C.4, section 75.

In the time allocated, I hope I have made it clear that my concerns are for those young Canadian sailors whose lives were taken from them in their service to their country, and for their personal effects, and less so for the ships in which they served and which have contained their remains for three-quarters of a century.

The nine state vessels and warships, and the 10 merchant ships that lie in Canadian territorial waters have rested there for nearly three-quarters of a century. The extent of their natural deterioration is not known, because they have been ignored. As previously noted, the state is responsible for state vessels unless and until the state informs the international maritime community accordingly.

These ships were constructed with materials, some of which may be banned today—for example, asbestos—and will almost certainly contain explosives and munitions. Inevitably, these wrecks will deteriorate to the extent where contaminants will begin polluting their surroundings. The state has a special duty as the warships' owner to monitor them and take proactive measures to deal with inevitable environmental damage.

With respect to the sailors, at the going down of the sun and in the morning, we will remember them, will we not?

Thank you, Madam Chair.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Captain Bender.

Mr. White.

[Patrick White, Founder and Executive Director, Project Naval Distinction]

Madam Chair and members of the committee, thank you for the invitation to appear on the topic of protection for Canada's ocean war graves.

Before I begin my remarks, I must acknowledge the presence of merchant navy Captain Paul Bender, whom I'm honoured to be sitting with today. As the committee already knows, Captain Bender has led the call for protection of Canada's ocean war graves, demonstrating tireless perseverance in his work.

Captain, sir, thank you for your service to Canada. It's a privilege to be supporting you on this initiative.

I would like to offer my thanks to all members of the committee for agreeing to hold this meeting today and for your comments during the clause-by-clause consideration of Bill C-64. It's truly appreciated to hear that our request for assistance did not fall on deaf ears and that all parties are interested in working together to ensure that the remains of our sailors are given the same respect as those of our soldiers and aviators.

I would also like to particularly thank the clerk and the analysts of the committee for their work behind the scenes to gather information for protection of ocean war graves and for their support in keeping the torch carried by Captain Bender burning bright.

With the report by the House of Commons Standing Committee on Transport, Infrastructure and Communities on protection for Canada's ocean war graves, I am optimistic that we are one step closer to providing the critically needed protection that the final resting places of Canada's sailors rightly deserve.

In my previous remarks before the committee I spoke of the importance and urgency of safeguarding Canada's ocean war graves. Today, I would like to offer some insight with regard to the problems that arise when involving multiple government departments in an issue, and to provide some specific recommendations for possible legislation to provide protection for Canada's ocean war graves.

In leading Project Naval Distinction and calling for Royal Canadian Navy recognition of Canada's greatest ship, HMCS Haida, I have gained some familiarity with multi-departmental issues. In these files, once one government department learns that an issue may partially fall under the scope of another, the collective response appears to be paralysis and the creation of a of leadership vacuum. I believe this is what has happened with the ocean war graves file, which has led to a long fight to act on something that no one seems to disagree with. Filling that leadership vacuum between departments is an incredibly difficult task for the Government of Canada, but one that can and must be solved at the political level. Therefore, it is critical that one minister in the Government of Canada be assigned to lead in protecting Canada's ocean war graves.

I would respectfully ask the members of this committee to assist in finding that minister and not to table a report in the House of Commons only to then leave it to gather dust. I would further ask members of this committee to request that that minister or even a fellow member of Parliament put forward a bill on this issue as soon as possible.

In terms of recommendations the committee might include in their report, I respectfully offer the following six points.

First is that a bill be drafted similar to the United Kingdom's Protection of Military Remains Act 1986 to provide protection for Canada's ocean war graves, including punishments in line with those of desecration of land-based war graves.

Second is to ensure the definition of an ocean war grave is enshrined in legislation to distinguish such graves from other wrecks or property of general heritage value.

Third is to request that cabinet examine all options to use existing legislative powers to provide immediate protection for Canada's ocean war graves as an intermediate measure until a bill has time to pass through Parliament and receive royal assent.

Fourth is that with the co-operation of all parties, speedy passage be given to a bill to provide protection for Canada's ocean war graves with the goal of achieving royal assent before Parliament rises this summer.

Fifth is that the Government of Canada make a formal request to the Government of the United Kingdom to add Canadian ocean war graves in U.K. waters to their list of protected places and controlled sites under the Protection of Military Remains Act 1986. They have already offered to do this and are waiting on that formal request.

Finally, sixth is that any Canadian bill drafted to provide protection for Canada's ocean war graves be given an informal title of the “Captain Paul Bender Act” in honour of the man and veteran who has proudly carried the torch on this important issue.

Thank you.

I look forward to answering any questions.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. White.

I'll move on to my colleague, Ms. Block.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Madam Chair.

I want to thank you both for joining us today.

Thank you so much, Captain Bender, for your service to our country and for leading the charge on this initiative. Thank you so much for your testimony here today. I truly appreciate what you have been working on and are proposing to this committee.

I would start by saying that we've heard from our departmental officials in the hour previous to this opportunity to hear from you. With all due respect to our departmental officials, I am left feeling that there needs to be a distinction between a heritage wreck and an ocean war grave. I'm also left believing that I would like to see Canada follow the actions of perhaps the United States or the United Kingdom in introducing stand-alone legislation in this regard. That's after reading what I've read and hearing what I've heard.

I certainly am not terribly intimate with all the work that's been done on this project, so I'm left wondering if you could comment and provide some input back to us on what you may have heard in the hour previous to this one, given there's a recommendation to this committee that this issue be addressed through regulations—regulations that would be perhaps overseen by numerous departments.

[Capt(N) (Ret'd) Paul Bender]

Insofar as merchant ships are concerned, there is adequate provision in the Canada Shipping Act, 2001. I believe it's subsection 163(2) that gives the Minister of Transport and the Minister of the Environment the authority to draft regulations. In those regulations there is adequate opportunity to define what is a heritage wreck, what is an ocean war grave, or any other category they wish to assign. I would not want to see too much of a separation between a heritage wreck and an ocean war grave, because in certain respects they are synonymous and they certainly should go in some way together. However, primarily my purpose here today, and for the past five years, has been to establish ocean war graves, because they've been completely forgotten, whereas heritage matters have not.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you.

I don't think I have any more questions for the panel. I would pass it on to one of my colleagues.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Madam Chair.

Thank you, Captain Bender, for appearing in front of us today. I understand that you served in the merchant navy during the Second World War, and subsequently in the Royal Canadian Navy and then the federal public service, so you've seen it all on both the military and civilian sides.

I assume you're with your son today.

[Capt(N) (Ret'd) Paul Bender]

Yes.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Welcome. I understand he's an accomplished musician in his own right, so it's good to see both of you here today.

I was wondering if maybe you could talk a bit about the experiences you had in the merchant navy during the Second World War, and also your experiences in the Royal Canadian Navy, and why you think it's so important that we focus not just on the heritage aspects of this, but more particularly the fact that these are war graves of lost men who fought for this country during the Second World War and before.

[Capt(N) (Ret'd) Paul Bender]

Of course, my experience in the merchant navy spanned a period of 10 years. One-third of that was in wartime conditions, whereas my service in the Royal Canadian Naval Reserve was at the same time as my service in the public service of Canada.

Insofar as the public service is concerned, I was there for 32 years, and with the Royal Canadian Naval Reserve for 11 years. My service with the Royal Canadian Naval Reserve was in peacetime. Perhaps it's trite to say, but peacetime is not the same as wartime. In wartime, mostly horrible things happen, but what tied us all together, both in the merchant navy and in the navy, was the natural companionship. When you see a ship being torpedoed, as I have—and I should tell you that my own ship was sunk by enemy action—there is not much sympathy for the ship as it goes down, but for those who were able to survive the catastrophe.

I don't know how much time I'm allowed to answer that question, but I have a number of experiences in war in the merchant navy.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Captain Bender.

We move on now to Mr. Fraser.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much, Captain Bender, Mr. White, and Alex Bender—and Captain Bender's son, as well. Welcome.

Perhaps it's easiest to start by saying thank you for your work on this file. Speaking for myself, I'd like to do something to help you guys accomplish what you set out to do. The devil, of course, is in the details, and I don't want to do it halfway.

I'm curious on the issue. My gut reaction was similar to Ms. Block's. There might be a need, in my mind, to distinguish ocean war graves from heritage wrecks. Captain Bender, you suggested that there may be adequate authority in the regulations today under the Canada Shipping Act, which are being shifted to Bill C-64, which we just dealt with. Do you think it would be necessary, or even helpful perhaps—if this were done by way of the regulations you referred to—to distinguish ocean war graves as a particular type of heritage wreck? To the point Mr. White made, would this be helpful to families or those interested in seeing that respect is given to our seamen at the same level that it is given to our army and our air force? Do you think that a distinction in the regulations would satisfy that need?

[Capt(N) (Ret'd) Paul Bender]

I certainly agree that the category of “ocean war grave” should be separate. The activities of all our military and the merchant navy are part of Canada's heritage, but I believe there should be a distinction for ocean war graves, because the concept is distinct from cemeteries.

It's important to keep in mind that the Canada Shipping Act does not apply to state vessels, which means warships, of course. In fact, warships are exempt from practically all conventions under the United Nations. Because they are exempt, there have to be provisions made by the state concerning them, concerning their conduct, and also concerning their disposition.

[Sean Fraser, Liberal, Central Nova, NS]

From the testimony we heard on the previous panel, I was left with the impression that within Canadian waters there may be the flexibility, if we define things the appropriate way, to overcome the distinction between merchant navy vessels, for example, and state-owned military vessels. I'm not so sure the same is true for Canadian vessels that are in the territorial waters of another country. The answers seemed to suggest that it was a matter of policy, not necessarily legislation, for the Canadian government to request that a foreign country offer the protection available under their laws. Do you see a legislative fix that perhaps I'm missing, or do you think the issue is really simply one of policy, where we should be requesting that foreign governments exercise their legislative authority?