Transport Committee on March 19th, 2018

[The Chair (Hon. Judy A. Sgro (Humber River—Black Creek, Lib.)), Liberal, Judy Sgro]

I call to order the meeting of the Standing Committee on Transport, Infrastructure and Communities in this 42nd Parliament. Pursuant to Standing Order 108(2), we are starting a study of ocean war graves.

To all of our members, welcome back, especially Kelly. We missed having you with us.

To the various individuals and witnesses, thank you for coming.

From the Department of National Defence, we have Steve Harris, acting director and chief historian, directorate of history and heritage.

From the Department of Transport, we have Ellen Burack, director general, environmental policy, and Nancy Harris, executive director, regulatory stewardship and aboriginal affairs.

From Parks Canada, we have Marc-André Bernier, underwater archaeology manager, and Ellen Bertrand, director, cultural heritage strategies.

Welcome to all of you. Thank you for finding time in your busy schedules to come before the committee today.

We would like to start with the Department of National Defence.

Mr. Harris.

[Dr. Steve Harris, Acting Director, Chief Historian, Directorate of History and Heritage, Department of National Defence]

Madam Chair and members of the committee, I would like to thank you for this opportunity to appear before you today as part of your study on ocean war graves.

I am Dr. Steve Harris, the acting director and chief historian at the directorate of history and heritage, National Defence headquarters. I began my career there in 1979, became chief historian in 1998, and have been the acting director since 2012. As such, I am ultimately responsible for the DND/CAF casualty identification program, which is managed by DHH within military personnel command. This program is just under 20 years old, and exists because in the late 1990s the Commonwealth War Graves Commission transferred its responsibility for identifying recently discovered remains of commonwealth sailors, soldiers, and airmen killed in the two world wars to the participating national authorities. This task was given to the chief of military personnel and delegated to DHH.

Using historical research and physiological records, we identified our first casualty in 2002—a soldier missing from the Lincoln and Welland Regiment whose remains were discovered and reported two years before.

Until 2005, our experience was entirely with remains found on land—soldiers or victims of an air crash—and whether in Europe or in Canada, clear protocols were followed. The discovery was reported to the police, who police determined that the remains were likely a war casualty. When evidence suggested that the individual was from a commonwealth service, the remains were gathered and stored by the Commonwealth War Graves Commission. If evidence suggested that the individual was Canadian, we were informed and began our work.

In 2005, however, the wreckage of an RCAF Nomad aircraft was discovered in Lake Muskoka, Ontario, by civilian recreational divers. It was not known at the outset whether the aircraft presented an environmental hazard, whether it carried any ordnance, and whether the crew were still on board. It was also not clear at the outset whether the wreckage should remain where it was and hopefully be declared to be a war grave should legislation exist, or whether it should be removed. Eventually it was removed, and the remains of the crew were given a proper military burial in 2015.

That was the first occasion upon which we at DHH became involved in discussions about defining a “war grave”, an occasion complicated by the fact that Lake Muskoka waters are in the purview of the Province of Ontario, not Canadian jurisdiction, as such. What we saw then was no clear way to provide protection for the wreck and the human remains in it. In discussions that followed, however, we realized that although the Nomad case had raised our awareness, it had become very clear that our involvement in wrecks was limited to those that contained human remains and that could be defined as a war or operational grave.

If something is going to be defined as a war grave, that suggests that the wreckage and the human remains are not going to be touched, removed, and reburied. In that case, DHH has no involvement whatsoever. The question for us has always been whether there is a requirement to consider whether a wreck in easily accessible waters is likely to be exploited despite its having been declared a war grave. From what we know, that consideration will apply mainly to aircraft, not ships, the Nomad in Lake Muskoka being the prime example. In that case, the lack of legislative means to declare the wreck a war grave was part of the decision-making process that led to its being lifted and human remains removed and buried. However, another part of that decision-making process was that it was easily accessible, and even if there had been a mechanism to secure Ontario Provincial Police assistance in shielding it, the likelihood that it would be dived on, and human remains potentially tampered with, was high. That was clearly a factor, too.

I would be pleased to take any questions.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Harris.

We're on to the Department of Transport.

[Ellen Burack, Director General, Environmental Policy, Department of Transport]

The Department of Transport does not have any opening statements, Madam Chair.

[The Chair, Liberal, Judy Sgro]

Thank you.

Who would like to go next?

Ms. Bertrand.

[Ellen Bertrand, Director, Cultural Heritage Strategies, Parks Canada Agency]

Thank you.

Madam Chair, members of the committee, it's a privilege to be here with you today to discuss the role of Parks Canada in the protection and management of heritage wrecks in the context of the study of ocean war graves.

Parks Canada protects and presents nationally significant examples of natural and cultural heritage, and we administer 47 national parks, four national marine conservation areas, and 171 national historic sites. The Parks Canada Agency Act established Parks Canada as the federal lead for federal archaeology and built heritage. Over the past 50 years Parks Canada has built an international reputation as a leader in the field of underwater archaeology through work on projects such as the excavation of a 16th-century Basque whaling ship in Red Bay, Labrador.

The agency is currently the only government entity that has the operational capacity for evaluating and managing heritage wrecks. This is expertise is led by a team that my colleague Marc-André heads up at Parks Canada. A high-profile example of this expertise is the work we did discovering, excavating, and documenting the wrecks of Sir John Franklin's ships, HMS Erebus and HMS Terror, in Nunavut.

Under the Canada Shipping Act, which is still in force, the Minister of Transport and the Minister responsible for Parks Canada Agency have joint authority for making regulations to protect and preserve wrecks with heritage value. These authorities came into force in 2007, but no such regulations have yet been introduced. Bill C-64 would transfer these authorities to section 131 of the new act.

Regulations, whether developed under the existing act or a new piece of legislation, would establish a definition of heritage wrecks that would be exempt from certain salvage provisions, for example, entitlement to a salvage award, which could include the wreck itself. These regulatory authorities would allow for the creation of an inventory of heritage wrecks and, importantly, a requirement to report new discoveries. They would also define activities directed at heritage wrecks that would require a permit. This might include searching for a wreck, excavating a wreck, and removal of artifacts.

Of the thousands of historic shipwrecks in Canada, a small but significant portion is military wrecks. In addition to the wrecks of vessels and airplanes belonging to the Canadian Forces, we estimate that at least 50 military wrecks belonging to foreign governments have been located in Canadian waters. We estimate that perhaps another 100 remain undiscovered. Approximately 90% of these foreign military wrecks in Canadian waters are the property of the governments of the U.K., France, and the United States of America.

In some cases, a foreign government has identified Parks Canada to act on its behalf to ensure the appropriate management of the wrecks. The management of the wrecks of HMS Erebus and HMS Terror is a good example. We have a memorandum of understanding with the Government of the U.K., but under future heritage wreck regulations, Canada would be able to protect these foreign military wrecks from unauthorized disturbance.

Wrecks are often the final resting place of those who perished on board. Almost all Royal Canadian Navy vessels that sank in Canadian waters have had at least one loss of life. However, human remains are found on other wrecks as well.

A poignant example is the wreck of RMS Empress of Ireland, an ocean liner that sank in the estuary of the St. Lawrence in 1914. Over 1,000 passengers and crew perished, making it the worst peacetime maritime disaster in Canadian history.

While the Province of Quebec put into place specific legal measures to protect this particular shipwreck in response to years of looting at the site, the proposed heritage wreck regulations would provide automatic protection of such underwater grave sites from unauthorized disturbances.

Heritage wreck regulations would also support Parks Canada's ratification of international agreements that would help to protect wreck sites at the international level, including sites that contain human remains.

In 2001, Canada and 85 other countries voted to support the language of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Member states agree to cooperate and work towards the protection of underwater cultural heritage within their jurisdiction and the high seas. To date, there are 58 state parties to the convention. Before ratifying the convention, Canada would need to demonstrate that adequate measures are in place to protect underwater cultural heritage, including heritage wrecks.

Similarly, Canada worked with the U.S.A, the U.K., and France on a draft agreement to protect the wreck of RMS Titanic, which rests at the edge of our continental shelf, beyond the exclusive economic zone.

Over 1,500 lives were lost, and after it was discovered in 1985, explorers penetrated the hull and removed over 5,900 artifacts. They removed them largely for commercial purpose and profit.

While the agreement is not yet in force, it does promote in situ preservation of the wreck as a memorial and a historic site. The proposed heritage wreck regulations could be extended extraterritorially to such an area to provide legal tools to regulate activities of Canadian nationals and Canadian vessels directed at the Titanic.

It is the view of the Government of Canada that the introduction of regulations would provide an effective solution to protect all heritage wrecks in Canadian waters under Canadian jurisdiction, including those that may be considered ocean war graves. To that end, Parks Canada has recently begun reviewing past work in this area and has had preliminary discussions with Transport Canada, the Department of National Defence, and Veterans Affairs to look at options to develop a regulatory regime for the protection of heritage wrecks under the existing joint regulatory authority in view of the new piece of legislation.

We would like to sum up by saying that if there is a clear framework and a management regime through regulations, the Government of Canada will be able to protect these important cultural sites.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Is there anyone else with opening remarks? Otherwise we will go on to our committee members and Mrs. Block for six minutes.

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

Thank you very much, Madam Chair, for your kind words welcoming me back. I recognize that I was not here for the completion of our study on Bill C-64, but I want to thank you for considering the amendments that were put forward by the Conservative of the committee. Also, thank you very much for your response to those amendments and for agreeing to hold this study on this very important issue. I am very glad to be back to be able to take part in it.

I also want to note that as part of this study, I've been made aware—I'm learning as we go—that there are a number of acts that could relate to this study. As has been mentioned, there is some work being contemplated between a number of ministries.

I think you referenced the question that was in my mind before you gave your opening statement, but I am wondering if you could expand on what kind of legislative framework would make the most sense in providing protections to these ocean war graves.

Do you see it taking place in regulation, as I think I heard? Would you see amendments being made to the acts that might provide oversight to this issue, or would you see, perhaps, the creation of a new act toward this end?

[Ellen Bertrand]

We see the regulations as being sufficient to offer the protection of heritage wrecks in Canada. Maybe I could go over some of the core elements of what's contemplated in the regulations.

There would obviously be a definition of “heritage wreck” or “designated heritage wreck”. The UNESCO Convention on the Protection of Underwater Cultural Heritage has a time limit of 100 years. Anything that is older than 100 years would automatically be considered a heritage wreck under that convention. In Canada, in the work that we've done, we've proposed 50 years, so anything older than 50 years would be a designated heritage wreck.

The regulations, importantly, would exclude heritage wrecks from salvage provision, so as I referenced in my opening statement, it would exclude a salvor from getting an award. It would take away the incentive to go after a wreck and bring up artifacts or bring up parts of the hull, for example.

The regulations would also exclude heritage wrecks from disposition and destruction provisions, so it takes those parts of the legislation and sets them aside.

We would also define a number of activities that would require a permit. If somebody wanted to search for a ship, like they do, for example, in the territory of Nunavut, they would need an archeology permit to go look for underwater archeological sites.

We would also provide for interim protection zones, so if something has been discovered, and we wanted to protect the area around a ship where there might be a debris field, we could define that under regulation. We can also create prohibitions to restrict access and restrict activities directed at that heritage wreck.

There would be mandatory reporting of a found wreck to appropriate authorities, and we would have this inventory—a database of wrecks.

This is a fairly robust set of regulations that we think would cover and offer protection for heritage wrecks, including those that have human remains on them.

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

Just to follow up on that, can you advise the committee how this recommendation aligns with what other countries or jurisdictions have done in legislation?

[Ellen Bertrand]

In Canada, provinces and territories all have legislation to protect heritage writ large. I can give you two examples. B.C., for example, has very strong protection for underwater cultural heritage. Any wreck that's been abandoned or wrecked is automatically subject to the law after two years, so you need a permit to do any research on those wrecks. It's a two-year limit.

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

If I could, I am more interested in what other countries are doing and whether or not they have legislation in place, or whether they have gone down the same path you are recommending.

[Ellen Bertrand]

There are examples in other countries, and I'll let my colleague Marc-André answer that question.

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

Thank you.

[Marc-André Bernier, Manager, Underwater Archaeology, Parks Canada Agency]

Bonjour. Yes, there are multiple examples and multiple ways of doing it. Some countries have archeological laws that protect at large, as these regulations would. France is one example. Australia is another. In Europe, 45 countries signed the Valletta Convention, which basically covers archeological sites on land and underwater.

Other countries have taken a different route and have specifically targeted military wrecks in addition to heritage wrecks. The U.K. is probably the prime example, and the United States also has specific regulations for military wrecks. In those cases, they cover not only shipwrecks that sank at a time of war, but also anything that can conserve and cover wrecks and human remains. It's not specifically war graves, but military wrecks. The U.S. covers not only American wrecks, but also protects other countries' wrecks in their waters. You have a vast array of possibilities.

The regulations under this one act, I think, would help us with the fact that we have to deal most of the time with the jurisdiction of the provinces, who have archeological legislation for the seabed. The Canada Shipping Act, for example, is more addressed at wrecks in the water column. The regulations would allow us to have a common approach, and one-to-one agreements with the provinces to manage the permits, for example.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Bernier.

Mr. Fraser.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much to our witnesses for being here. I'll more or less pick up where my colleague left off.

I'm most interested in getting these wrecks protected. One of the things that stuck with me from the testimony of Mr. White, who was here previously, was that one of the purposes of their coming before the committee was to communicate that although they felt that our soldiers and airmen were treated with a certain respect when it came to military graves, the same was not necessarily true for those who were lost at sea. I've played that scenario over in my mind a number of times since I heard that testimony.

If we went down the route that we're talking about with respect to proposed regulations, would it be possible to specifically distinguish in the regulations war graves from other heritage wrecks? Part B to that question is, would there be a need to wait 50 years, or would the interim measures you were chatting about suffice to protect a ship from the day it goes down?

[Ellen Bertrand]

I'll take the first kick at that one.

The regulations, as we've envisioned them, could allow for that first definition, which is about a time limitation, but they would also offer an opportunity for the minister to identify any other wreck that he or she would deem to have heritage value. That would be set apart in a schedule. It is possible to have something immediately identified. It would probably have to meet a number of criteria, but that would be possible.

Did you want to add anything, Marc-André?

[Marc-André Bernier]

The blanket coverage is a beginning, and then after that the regulations would also allow a specific case that does not meet that criteria, but is found to be of high significance, to be included in the regulations.

[Sean Fraser, Liberal, Central Nova, NS]

The regulations, for example, could identify war graves as a class of heritage wrecks, and then the schedule could designate specific vessels that are sunken war graves, which for the purpose of the definition would also be a heritage wreck.

[Marc-André Bernier]

That's something we could define in the regulations, for sure.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Harris, you might be best positioned to answer this question. We heard that there are at least 50 known vessels in Canada, maybe 100 more than that. I'm curious. With your historical background, do you know the number of sunken potential war graves, I guess I'll call them, that might exist outside of Canadian waters?

[Dr. Steve Harris]

I don't. It sounds as if I'm running away from the issue, but for us at DHH, the issue is really the identification of human remains when there is a report of a finding and when those human remains can't remain where they are. We know where ships have been lost; I could come back to you with the total number.

Our interest has been what happens when a wreck becomes so easily accessible that the kind of sacrosanct nature of a wreck, even declared as a war grave, begins to get doubtful. In the Nomad case, it had lain in Lake Muskoka for about 50 years. Then the zebra mussels did their work and cleared the waters, and it was seen. Had it been declared a war grave at some point in the past when it wasn't seen, I don't think we would have faced the problem that we did once the zebra mussels did their work and the waters cleared.

[Sean Fraser, Liberal, Central Nova, NS]

Shifting back to the potential regulatory framework we were discussing, I think I have a handle on a solution that might pertain to vessels within Canadian waters. Of course, we're going to depend on partners who are signatories to the convention, who potentially get their own legislative fix, when we're dealing with Canadian vessels outside of Canadian waters. Would there be an opportunity in a regulatory scheme to place a duty or, at the very least, an option for the minister to specifically request, pursuant to a law, counterparts in other countries that may play host to Canadian vessels that have sunk?

[Ellen Bertrand]

I might turn it over to Marc-André. It is possible to have bilateral agreements with other countries for the protection of other vessels.

Perhaps you can give the example of the Titanic.