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Standing Committee on Transport, Infrastructure and Communities



Monday, March 19, 2018

[Recorded by Electronic Apparatus]



     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.
     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.


    Thank you very much, Mr. Harris.
    We're on to the Department of Transport.
     The Department of Transport does not have any opening statements, Madam Chair.
    Thank you.
    Who would like to go next?
    Ms. Bertrand.
    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.
    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.
     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?
    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.


     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?
    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.
    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.
    There are examples in other countries, and I'll let my colleague Marc-André answer that question.
    Thank you.
    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.
    Thank you very much, Mr. Bernier.
    Mr. Fraser.


    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?
    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?
    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.
     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.
    That's something we could define in the regulations, for sure.
    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?
    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.
    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?
    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.
    Yes, there's the Titanic, but also our Royal Canadian Navy vessels in international waters. Most of them are in either U.K. waters or French waters. The French, basically, will stop any activities on the foreign military vessels and contact the government.
     We do have one vessel that's protected under the French regime.


    Does that require that we request them to protect it, or does it happen automatically under French law?
    The French will do it automatically and contact the country, and then we can say yes or no. With the British, you do have to be proactive. We do have three corvettes, as was mentioned in the previous committee hearings; and 95 men lost their lives on these three vessels.
    Could the regulations require the minister, in the example of the U.K., to make a request where that's required?
    It wouldn't necessarily be part of the regulations, but it could be part of a global strategy on wrecks and heritage wrecks that we're hoping to develop.
    So that's a policy rather than a legislative fix.
    In this case here, yes, because we have no legislative authority in international waters.
    I think I'm out of time.
     If in a future question, Ms. Bertrand, you could get your comment in, that would be great.
     Thank you.
    Ms. Sansoucy, welcome. I'm glad to have you at our committee today.


    Ms. Bertrand, you spoke about the importance of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage and the importance of this international treaty designed to address the growing problem of pillaging and destruction of heritage.
    You also indicated that Canada did not take part in the convention because, unlike the 58 other signatory countries, Canada did not take the necessary action. What are the justifications for this refusal to take measures to join the convention?
    I wouldn't say it was a refusal. It's a pretty complex subject, actually. The convention doesn't cover just shipwrecks of heritage value, but all underwater cultural heritage. For instance, it could include the remnants of an ancient indigenous village.
    Canada currently has no legislation that truly protects cultural heritage at the federal level. So that is the first obstacle to ratifying such a convention. It's up to the country to determine for itself whether it has taken sufficient measures to protect all underwater cultural heritage, such as shipwrecks, villages and other remains that could end up in its waters.
    I wouldn't say it was a refusal. The current legislative framework is lacking. In fact, another parliamentary committee, the Standing Committee on Environment and Sustainable Development, discussed the legislative shortcomings. This committee recently made some recommendations for Canada to consider implementing such legislation.
    Could you tell us—now or through documents that will be sent later to the clerk—which internal assessments by your respective departments justify the fact that, since 2001, the necessary steps haven't been taken to be part of this convention?
    Yes, we could provide you with more details.
    Essentially, the powers to create regulations have been in the act since 2007. The act came into force in 2001, and it took a few years to establish the powers to make regulations. At this point, we began to determine how these regulations could protect the marine environment.
    We also have to work with the provinces and territories, each of which has its own laws and regulations. We do not want to double the bureaucracy or the number of licences needed to administer the protection. It is quite complex, given the questions that arise in the areas of federal and provincial jurisdiction. We want to make sure we do things right, with the agreement and participation of other authorities.
    Various figures have been put forward during your presentations.
    Has an estimate been given of the value of Canada's underwater heritage that has been damaged since 2001, since the adoption of this convention?
    I'll let my colleague Mr. Bernier respond.
    Are you talking about the number of wrecks that have been damaged?
    It might be interesting, in the context of our committee's work, to have the breakdown of the annual data on heritage that has been damaged, such as the number of wrecks and their value.
    We don't have an estimate like that at the moment.
    Library of Parliament briefing notes we received indicate that, pursuant to subsection 163(2) of the Canada Shipping Act, 2001, cabinet may, on the joint recommendation of the Minister of Transport and the Minister responsible for the Parks Canada Agency, make regulations governing shipwrecks or classes of wreck that have heritage value.
    Could you tell us how many times this power has been used so that cabinet provides legal protection for ocean war graves?


    To our knowledge, this has never been used at the federal level, given that the regulations are not in place.
    In other words, cabinet can do it through regulations but never put them in place.
    That's what we're currently working on.
    Right. This is fascinating.
    As we know, the wrecks of RMS Erebus and RMS Terror are included in the National Historic Sites of Canada Order. So someone committing an offence against these wrecks is punishable by a fine of up to $100,000.
    Have you determined the number of wrecks that could be included in this order? Why are they still not?
    In fact, it was a measure we took that was specific to the territory of Nunavut. It could hardly be enforced elsewhere in Canada because it follows from the Nunavut Act. It is a delegation of authority from the federal to the provincial level. We have placed part of the territory under the protection of the Canada National Parks Act. This measure therefore applied only to this place
    Okay. As you said, there is still work to be done with the provinces before extending this type of measure.
    Has work been started—


     Ms. Sansoucy, I'm sorry but your time is up.
    Thank you, all.
    Mr. Iacono.


    Thank you, Madam Chair.
    My questions are also for Ms. Bertrand and Mr. Bernier.
    Could you describe the process and criteria that establish a wreck's symbolic value?
    Of course, the heritage value of a wreck can be determined in a variety of ways. It varies by country. At the international level, UNESCO has come up with a solution that respects the approach it wants. We are talking about 100 years of coverage. Everything that has been in the water for more than 100 years would therefore automatically be protected. Using age as a basis is easier administratively speaking.
    Having said that, there are other ways of proceeding and other criteria. A wreck may be important locally or regionally, or even nationally or internationally, as is the case with the Titanic.
    After consulting with the provinces and many partners, including groups of divers and interest groups, we suggested uniform coverage beginning around 50 or 70 years, so that we can capture parts of our national history, including the period of the two world wars, especially the second.
    We are talking here about military vessels, but there is also the merchant navy. It doesn't benefit from the international protection offered to vessels or flagships belonging to a fleet. Our sources indicate that 72 Canadian merchant navy vessels were lost during the Second World War, resulting in the loss of more than 1,500 men. According to UNESCO, these vessels would not benefit from 100-year coverage. However, we would like this period to be covered, because in Canada it has had a considerable impact.
    The heritage value of a vessel can therefore be defined by the age of the vessel or by what it has accomplished.
    Ms. Bertrand, would you like to add anything?
    Yes. This second proposed criteria to establish heritage value would perhaps recommend that the minister add to the list other wrecks that experts and historians believe would have heritage value even if they are not as old as set out in the first criterion.



     Mr. Harris, in reference to the last paragraph on page 1 of your document, you mentioned that it was discovered in 2005 and the proper military burial was done in 2015.
    That's correct.
    Why did it take 10 years?
    It took some time to work out what should be done with, first of all, the frame of the aircraft. Once it was discovered, the local town had an idea of lifting the wreckage and using it, perhaps, as a monument in the town. Others became interested in that.
    The issue at that point was whether there were human remains aboard, and we suspected there were but we hadn't dived to it yet. It was a case of trying to put off interest until we could get to it and confirm whether there were human remains and whether they could be safely removed from the wreck without lifting the wreck. In the end what we concluded was that we could remove some of the remains, but not all of the remains, without lifting the wreck.
    The wreck was lifted, and then it was a case of making sure that the next of kin could attend the burial. It was a long process, but it worked out.
    I want to make reference to your document, on the second page, second to last paragraph, you say:
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.
    My question is to all three departments. Can you explain if, when, and how your role would be with respect to heritage wrecks, war graves, military wrecks, or human remains? We're dealing with so many components. Who does what, when, how, and which department? This needs to be clarified.
    I'll start, and then I think I'll turn it over to Marc-André.
    Under the envisioned regulations, Parks Canada would be the lead. If it were a military wreck, if there were human remains, we would obviously work with and consult our colleagues at DND, potentially Veterans Affairs as well.
    The general idea is for in situ preservation. There are protocols in archaeological research around human remains. The protocols are respected and they're very defined. Perhaps this is where I'll turn it over to Marc-André, as to how to treat them, but overall Parks Canada would be the lead on that regime.
     There are many steps. The first one is to identify whether the wreck is known or not and whether it's a Canadian wreck or a military wreck. Then, depending on which one it is, you will involve either DND or Global Affairs.
    Once you identify human remains, we do have a protocol within Parks Canada that is a “no touch” and “leave in place” protocol. I'll give you one example, quickly.
    In 2009, an American PBY airplane was found with human remains in the St. Lawrence. At that time, knowing when we found the plane that there were human remains inside, we stopped everything, contacted the U.S. through the former department of foreign affairs, and worked with them to recover—they wanted to recover the human remains to repatriate them, so we helped them out.
    It's basically a collaborative effort. In approaching this issue we are talking to DND, Veterans Affairs, and other departments, because it has ramifications.
    Thank you very much, Mr. Bernier. I'm sorry, it was just a lot of information that we were trying to get at the last minute, evidently.
    Mr. Badawey.
    Thank you, Madam Chair.
    I do want to thank the witnesses for being here today and helping us to put something in place or, one hopes, adding to what's already there. This is extremely important to this committee, and the intent is to solidify a pragmatic process to ensure that we can deal with this in a most respectful manner, moving forward.
    My first question has to do with the special designation for heritage wrecks and war graves.
    Correct me if I'm wrong, but am I now hearing that it's multi-ministerial? I heard Parks Canada, Transport, Defence, and also Veterans Affairs mentioned. Are those the different ministries that are going to be involved in this? I thought I also heard that Parks Canada would be the lead.


    I think it's important to also remember that the Minister of Fisheries, Oceans, and the Canadian Coast Guard has a role at the start of this process.
    Bill C-64 and the activities around it clarify that the first point of contact when a wreck is identified is the Canadian Coast Guard. The Coast Guard would then be in touch with Parks Canada, which leads on heritage wrecks. If there is military involvement, then it is with DND, and certainly with Transport Canada.
    It is important to note also that in the definition of “receiver of wreck”, wrecked aircraft in water are included, so the regulations that Parks Canada is talking about to deal with heritage wrecks and war graves would potentially include aircraft in the water.
    After that initial communication and the reporting of a discovery, Parks Canada, as the lead agency for federal archeology, would take the coordinating role. We would be the face of the work and the permitting, perhaps in co-operation with the province.
    Yes, sometimes it gets complex because we have to consult and work with other departments or other jurisdictions, but at the end of the day, it would be Parks Canada's mandate and authority to implement and give effect to the regulations and the permitting activities therein.
    Thank you, and thank you, Madam Chair.
    If I may, I'll just dig a bit deeper into the weeds. Both internationally as well as nationally, working with our partners, from some of the recommendations I've already heard, I thought that a lot is already in place and that it's a matter of filling in those gaps.
    Do you see that article 303, point 1 of the United Nations Convention on the Law of the Sea would actually help fill some of those gaps?
    I'm going to have to take a pass on that question.
    Would you or Madam Burack respond?
    The Law of the Sea will give sovereignty to the wreck. It doesn't really fill a gap. If there is a ship from a foreign country in our waters, it is up to our legislation to protect it. I think that is where the gap is.
    Basically it preserves that ownership, but it would then mean that we need regulations to protect those wrecks. It's the same for our ships abroad. It keeps our sovereignty of these ships, but then we have to—
    Thank you, and thank you, Madam Chair.
    How much time do I have left? Two minutes? Great.
    I want to get a bit deeper into that as well. What I'm trying to do is to find a mechanism for us to get to that next step, to actually have this done in a shorter time frame versus longer.
    When I look at article 303, point 1 of UNCLOS and I compare it to article 303, point 3, they're actually contradictory. Article 303, point 1 places a duty on states “to protect objects of an archaeological and historical nature found at sea”, whereas article 303, point 3 states that nothing shall affect “the law of salvage or other rules of admiralty”.
    Is there an opportunity here as well to help, or contribute to ensuring that those sections don't contradict each other, so that, moving forward, we don't run into hiccups or challenges to our really looking after a lot of these sites?
     I think the situation right now in Canada itself has inconsistencies between provincial or territorial legislation, for example, and what's in the Canada Shipping Act. The Canada Shipping Act actively rewards people for going to do salvage work. These regulations, as I said earlier, would remove those from wrecks that have heritage value.
    I can't comment on the Law of the Sea and how that might help or how the contradictions might be resolved by other pieces of legislation, but in the Canadian context the regulations would resolve those inconsistencies.
    Thank you.
    Thank you, Madam Chair.
    We'll go on to Mr. Liepert.
    I just have a couple of questions.
    I wanted to get some clarity. The term that is being used is “ocean war graves”, but we are talking about under the water here, are we not? It doesn't just have to be oceans?


    That's right.
    Also, it can be peacetime wrecks, as well, not just war wrecks. Is that correct?
    Marc-André earlier gave the example of the U.K. legislation, which protects wrecks that resulted not only from conflicts but also just from general service. That's one example where something is protected that might not necessarily have become a wreck as a result of a conflict.
    To our knowledge, there is no internationally accepted formal definition of a war grave. That would require, I think, more discussion for the Canadian context to decide what might be included in that definition, whether it's conflict in wartime, whether it's service, and whether it would extend to vessels that were put in service by the forces.
    If I can maybe add something, you are right. The question of war graves came to the committee at the last hearing.
    From our perspective, those are one classification of wrecks that have loss of life, but there are others. There are a lot of other losses of life. That's why we believe that the regulations—as prepared and as thought of and as we've worked on them—would allow us to encompass everything, including those that are not military, but merchant vessels. Yes, it's beyond war graves, but specifically ocean war graves. That was brought up last month.
    Because it would include anything that's underwater, I'm interested to know how the jurisdictional issue would be dealt with when it comes to provinces that effectively.... It would be provincial jurisdiction, yet we'd have federal legislation. Talk about that a bit.
    It would require coordination. As we were developing these over the last eight to nine years, there was consultation with provinces and territories. They have asked for regulations to be in place to get rid of that inconsistency between the federal law and the provincial law.
    Implementing the regulations would require coordination. We wouldn't want dual permitting, for example, so a province might give a permit for waters where you can find a wreck and where people want to do research and excavation, for example. We wouldn't come over and above that and do that, but would coordinate with the provinces and territories to make sure that either we did it on their behalf or vice versa, or there was some coordinating body.
    If I could add to that, it's one of the reasons that certain parts of Bill C-64 don't apply to wrecks considered to have heritage value: to take away that potential conflict with some of those pieces of provincial and territorial legislation.
    I don't know if this would even be likely, but if we had an agreement with another country, would that possibly also include peacetime underwater wrecks, as well? How do you see that kind of an agreement working?
    Do you mean for us to protect vessels of a foreign government in our waters?
    Maybe the other way around; we might have vessels that were foreign to that country that we might want either some access to or protection for.
    I think it would very much depend on the laws in force in that country, and Marc-André gave the example of France, where they would automatically protect it. They're not protecting just military vessels; they're protecting what they consider to be heritage wrecks. It could be other types of wrecks that would be in their waters that they would protect.
     I think that's all I have.
    Mr. Hardie.
    It's very convoluted. Is there any way it could be made simpler?
    I think the regulations would bring certainty. They would bring clarity to all involved in the country. The legislation and regulations would clarify what you have to do when you discover a wreck. They would clarify to those who were thinking of going to salvage heritage wrecks that they could not. It would identify clearly where you go to get permits if you wanted to do research.
    Right now none of that exists in an overarching way. Our view is that the regulations would bring much-needed clarity and protection, because right now you're dealing with the variability of provincial and territorial legislation, and there's nothing protecting anything in federal waters right now.


    That state of the regulations is that they were prepared 10 years ago?
    Yes. More or less.
    Ten or 11 years ago.
    Ms. Ellen Bertrand: Yes.
    Mr. Ken Hardie: Was there sufficient work done at that time with the provinces to get alignment?
    Yes. We did quite a bit of work even before the authorities came into place in 2004, in view of those authorities coming into place imminently, all the way up to 2011. We feel that with the work that has been done now.... There was alignment back then. We would need to check and go back and consult with our provincial and territorial colleagues to see if what was thought of back then needs some updating. At that time, we felt things were well aligned.
    The impression I get is that with the updating you have just mentioned, these regulations could be ready to go anytime?
    Yes. There's a regulatory process, obviously. We need to do consultations and have public comment periods. Our hope is that if we had the momentum and capacity, they could potentially be implemented by the end of 2019 or early 2020.
    Who has to push the button?
    The button has been pushed, I would say, because we've dusted them off and we're starting to talk with our colleagues in other governments and starting to engage with our federal-provincial-territorial colleagues at the culture and heritage table.
    Let's say, for example, a new wreck is discovered. We suspect there could be up to 100 military vessels sunk and we discover a new one. Is there any mechanism in place where some sort of interim protection could be put in place until these regulations finally make their way over the finish line?
    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.
    Thank you. That's all I have.
    Thank you very much.
    Ms. Sansoucy, you have two minutes.


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


    Yes, that's it.
    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.


     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.



     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.
     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.


    Thank you very much, Captain Bender.
    Mr. White.
     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.


    Thank you very much, Mr. White.
    I'll move on to my colleague, Ms. Block.
     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.
    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.


    Thank you.
    I don't think I have any more questions for the panel. I would pass it on to one of my colleagues.
    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.
    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.
     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.
    Thank you very much, Captain Bender.
    We move on now to Mr. Fraser.
    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?


    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.
    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?
     I think it is one of policy, and all you have to do is to listen to what the German government has done in asking the U.K. government to apply U.K. law to the U-boats, whose torpedos sank the three Canadian ships that were trying to provide protection, and that are in U.K. territorial waters. The U.K. is quite prepared to do that, and they were very close to doing it until there was intervention on the part of the Government of Canada to prevent it from happening.
    Just as a side note, I have a particular interest in the merchant navy. A few years back, when I was a university student, I took part in a History Channel miniseries and played—as an actor and not the real thing—a member of the merchant navy. I've taken a real interest since, so I'm finding this all very fascinating.
    My final question, if I have time, Madam Chair, in the final minute, is this: we heard that one strategy to offer protection would be to remove the reward by saying, “You can't salvage these sunken vessels anymore.” Mr. White suggested there should be penalties similar to the desecration of another grave site.
    I'm curious as to whether you think there is a particular type of penalty or protection that should be included.
    In my commercial experience with the merchant navy, there should be no special protection for merchant ships unless it has been determined that the activity in which they were involved was definitely in support of the armed forces.
    I cited one case in the U.K., which is the only one I have come across, where this happened. The descendants of the sailors who were lost when the ship was sunk made an appeal to the courts, and they were successful in their appeal.
    In the commercial world, though, when a merchant ship is sunk or goes ashore or is abandoned—provided the ship is declared a constructive total loss, the insurance companies and cargo owners have been paid off, and the owner doesn't want anything to do with it—that ship is up for grabs for anybody.


    Sir, I think that's my time. I thank you for your presence here today, and your career of service as well.
    Madame Sansoucy.


    Thank you, Madam Chair.
    I would like to thank the witnesses for their presentations.
    Unlike my colleagues, I didn't have the opportunity to take part in the committee's work on Bill C-64. So I have to do a bit of catch-up today. However, your testimonies have really helped me to understand the importance of the matter, so thank you.
    Mr. Bender, you said that you went to the United Kingdom, where three Canadian corvettes have sunk in British territorial waters. On your own initiative, you have asked the High Commission to submit a request for all three vessels to be protected by a special United Kingdom law, called the Protection of Military Remains Act. As I understand it, this law is strictly aimed at adding sanctions in international maritime law for vessels that sank in British waters. When the United Kingdom authorities examined your request, they asked if it was possible for a higher authority to present it. You told us about an email received in August 2016.
    Am I to understand that you didn't get the support of the Naval Association of Canada to further your request?


    I was getting very close co-operation from the Royal Navy, which manages the U.K. act, and they did not question my position in the negotiations. It was only when what I was doing came to the attention of a representative from the Government of Canada that it intervened and and did not support what I was doing.
    There was no evidence from the U.K. side that they did not support what I was doing. In fact, they strongly supported it, and I came very close to getting what I was hoping for on behalf of the many sailors who were lost in those three ships.


    As you mentioned, it's interesting to note that German submarines are protected under British law, but that you can't get the same protection for Canadian vessels that have sunk in British waters.
    Has Global Affairs Canada examined your request? What is the department's position on the need to protect these three Canadian corvettes? This isn't clear to me.


     Quite honestly, I don't know what the Government of Canada's position is. I think you would have to ask MP Karen McCrimmon, because the position of the Government of Canada passed through her office to the British High Commission here in Ottawa. Nobody in the Government of Canada has explained to me why they oppose what I was doing—just that they opposed it.


    Thank you.
    Mr. White, the last time you appeared before the committee, you said that Bill C-64 must be amended to define and ensure the protection of military cemeteries in accordance with subsection 163(2) of the Canada Shipping Act, 2001. I'm summarizing your remarks. You said that we must ensure that the penalties imposed on offenders are similar to those for grave robbers.
    Could you please explain what the concrete effects of the amendment you've proposed would be? How can this amendment and your other recommendations be included in this bill, which you would like to see passed soon?


    Thank you for your question, Ms. Sansoucy.


    One of the things that becomes a problem when you group ocean war graves under general heritage designations is that you might end up with a situation where someone who desecrates an ocean war grave would only be committing a regulatory offence. They could find themselves in contravention of the Canada Shipping Act and could have a fine imposed on them, but the equivalent is that you're desecrating a cemetery. Human remains have been dumped in mass graves, as we've seen in the Java Sea off Indonesia as these salvagers have ripped these vessels apart. As Captain Bender has rightly said, the concern isn't for the metal or the ships. The concern is that these are metal tombs.
    One of the things I remember, which Captain Bender has just mentioned, is Criminal Code provision 182. Essentially, you're looking at Criminal Code provisions that allow us to say that Canada's domestic laws will include criminal sanctions for those who desecrate ocean war graves. If you were to go the route of using just the Canada Shipping Act provisions and say that we'll add them under the heritage provisions—which under Bill C-64 would be section 131, currently section 163 of the act—it would mean that you're not capturing the spirit of what an ocean war grave really is: you're just lumping it in with some of the other heritage property, which I've mentioned. A stronger Criminal Code provision I think would be in line with the same kind of Criminal Code provisions that might apply to the desecration of a cemetery or any other war graves that Canada protects.
    Even from just listening to what the officials were saying, as I think some members of the committee have picked up on, if you have to wait 50 years for something to be designated a heritage property, then the benefit of having legislation similar to that of the U.K. is that it's also forward-looking. God forbid that anything happens in the future, but the navy does take risks. I know, because I've also deployed. With separate legislation that doesn't classify naval wrecks or something to that effect as just heritage property, you could have protection that exists the minute those vessels or even aircraft go down. I think there was an issue in just the last few weeks when a United States Air Force plane went down with a pilot inside.
     There are various elements, I think, as the committee has certainly picked up on. It is definitely appreciated in that regard—
    Thank you very much, Mr. White.
    Mr. Patrick White: I'll leave it there.
    The Chair: Mr. Hardie.
    Captain Bender, thank you for your service. Who knows, but you and my father may have crossed paths along the North Atlantic, because he was on one of those corvettes that was trying to keep the bad guys away from you.
    I would presume that the wrecks we're talking about here would be located fairly close to the continent, on the continental shelf. Those that went down in the open ocean would be beyond reach to just about everybody, I would presume.
     Yes. I think you're correct in saying that they are beyond reach to just about anybody, but there are some people who are owners of and operate extreme depth machinery. One of them chose to dive down on the German battleship Bismarck and was very severely reprimanded by the German government for doing so. It's the same person who discovered the Titanic. There are people who have the equipment. They are not as common as the regular diver who is looking for souvenirs to show his grandchildren or something like that.
    Yes, the warships that I'm concerned about and the sailors' remains there, are within the Canadian exclusive economic zone.
    It's interesting that you brought up the Bismarck, because that came to mind as well. In fact, I saw a documentary about that dive. It occurs to me that documentary filming, or even tourism, I suppose, also could be classified as an invasion of sorts and a desecration. Would you agree with that?
    Yes, indeed.
    Have there been any examples of undue disruption of a wartime wreck in Canadian waters?


    I know of only one person—and unfortunately I have agreed not to name him—who showed me a skull that he had taken from a Canadian ship, and that he displays on the mantelpiece in his house and shows to all his friends.
    Oh. Well, he'll have to wrestle with that, then, won't he?
    Well, so will I, every time I see it.
    Do you think efforts should be made to somehow preserve the wrecks once they are identified? Or should we just simply let nature take its course and let them decay as the ocean will take them?
    I think we should just let nature take its course. Nature has been taking its course for three-quarters of a century and we're far too late to do anything about it. We may have enough to do with the consequences of not having done anything for the last three-quarters of a century.
    With respect to munitions, petroleum products on board, etc., I presume it's not a great amount in the grand scheme of things.
    I don't think there are large quantities, no. I am concerned about a depth charge floating to the surface at the same time as a fully loaded tanker reaches the same spot. I wouldn't want to be close by in the following explosion.
    There again, maybe some form of site remediation may be at least thought about if we know a wreck is along certain shipping lines, etc. Let's take the St. Lawrence Seaway as a good example.
    What about the merchant marine? You served there, and certainly the merchant marine, on balance, suffered more casualties than the Royal Canadian Navy. Should we not also extend the war graves protection to them because they were basically pressed into service on behalf of the country?
    Yes. Well, this is a highly controversial subject, because you have the commercial interests on the one side and the military interests on the other side. I did cite one case where the descendants of those who were lost in a merchant ship were successful in getting it classified as being roughly comparable to a warship, but it would have to be on a case-by-case basis—and very lengthy and very expensive.
    Mr. Ken Hardie: Mr. White.
    If I may add to that, sir, I know that in the U.K. legislation there is actually a definition for what military service is. As Captain Bender was saying, you could take that definition of what military service is and apply it to the merchant vessels to determine if they were in military service when they were sunk and whether the protection would apply.
     Thank you.
    Mr. Iacono.
    Thank you, Madam Chair.
    Captain Bender, I want you to know how much we personally admire what you are attempting to do on this matter, which is, finally, that headstones surrounded with flowers be installed for those who have perished at sea. Hearing what the different departments said earlier, with all agreeing that a regulation is a must, is that sufficient?
    That would be sufficient only so far as merchant ships are concerned, because the Canada Shipping Act does not apply to warships.
    What do you mean by that?
    Well, section 7, I think it is, of the Canada Shipping Act clearly says that it doesn't apply to warships. Any regulation that was made under the Canada Shipping Act would apply only to merchant ships or commercial vessels. I should say that the definition of “state” vessel covers not only warships but also would cover the Canadian Coast Guard.


    Thank you, Captain.
    Madam Chair, I'll give the rest of my time to my colleague Mr. Fraser.
    Thank you.
    On that issue, there's something technical in play. I apologize, because I'm thinking it through in response to your feedback. The regulatory authority you've referred to, which is currently in the Canada Shipping Act, essentially will be transferred pursuant to Bill C-64 into the new piece of legislation that deals with abandoned vessels, if my memory serves me correctly. I can't remember a provision, though—my memory is imperfect—that is limiting in the same way that the Canada Shipping Act is, as you correctly pointed out.
     This would lead me to think, at least in the moment—and I will go back to do my homework on this before we land on specific recommendations—that the minister responsible would have the authority to designate a state vessel that could be essentially a heritage wreck, which I think would open the door to include in regulations a sub-definition of war vessels.
     If I'm correct in my analysis, do you still have reservations about the regulatory authority? I recognize that Mr. White has raised separate issues, which I'll get to in a moment, time permitting, but if that limiting factor in the Canada Shipping Act is not present in the new Bill C-64, which we have just dealt with at this committee, would it be okay with you to offer protection through that scheme?
    No. I would much prefer that there be separate legislation to apply to state vessels, because warships are exempt under international maritime law, no matter which UN convention you look at, which means that the state has to have its own legislation respecting the behaviour of persons on the warship and the behaviour of the warship itself.
    It's important to understand that when we send one of Her Majesty's Canadian ships to sea, that ship is not acting for the Minister of National Defence or for the Government of Canada, but as a crown vessel, and the crown, 92-year-old Queen Elizabeth, has other things to do, so she delegates her authority to the Governor General. Under section 15, I think it is, of the Canadian Constitution, the Governor General is the command-in-chief of the Canadian Forces. Any time a warship goes to sea, that ship is acting on behalf of Her Majesty, as her power is delegated to the operating level.
    I expect I'm more or less out of time here, so I may follow up with you in the days to come.
    Ms. Block.
    Thanks very much, Madam Chair.
    I guess I have just one question. I would not be opposed to allowing Mr. Fraser to ask the other questions he has, unless other committee members have questions. I know that he and I are thinking alike today, so I'm happy to give him the opportunity to ask his questions
    I'm wondering if you would be willing and would feel free to provide to this committee the letter you received from MP McCrimmon, just so we could have a better understanding, perhaps, of what the issues were that the Government of Canada, through her, was raising on the work you were doing.
     Well, I did mention in my presentation the relevant section of the email that was sent to me by MP McCrimmon's office, and I don't think there is anything preventing me from distributing that.
    If you would send that to the clerk, I'm sure she would be able to get it to the members on the committee.
    Thank you.
    Mr. Fraser, do you have any more questions? Or I'll go on to Mr. Badawey.
    Maybe just quickly, there is one issue I'd like to raise. Why I keep coming back to this issue of regulatory schemes versus a separate piece of legislation is that I think there's an opportunity to do something now, and I don't want that to pass me by.
    Should we recommend as a committee that the government adopt a stand-alone piece of legislation from scratch, I fear that over the next number of months, despite what may be the best of intentions, things will take longer, as they always do. As a new member of Parliament, I will say that they take a lot longer than I would like them to. There is an opportunity to offer some protection today, recognizing that it may not be perfect. The one stumbling block I have is that perhaps the criminal component Mr. White referred to would likely be absent, but we've seen very serious penalties through a regulatory scheme—of an administrative monetary nature, for example—that are quite effective at serving as a deterrent.
    I wasn't quite with you every step of the way when you described the fact that the vessels in service of the crown, because what can be.... Because essentially regulations hold the same force and effect of a piece of legislation for the purpose of the law being implemented, I still think there might be an opportunity—and if you disagree, please let me know—to classify ocean war graves as essentially a subcategory of a heritage wreck under the regulations for Bill C-64. That would give us the opportunity to remove the carrot, so to speak, that's provided for salvage operators and implement a stick of some kind through another kind of regulatory penalty scheme.
    If in my work to follow I am confident that's the case, are there still going to be obstacles that prevent us from taking advantage of the opportunity that's staring us in the face today?


    I don't think so.
    Okay. That was my only question. Thank you.
    Mr. Badawey.
    Thank you, Madam Chair.
    I do want to thank the witnesses for coming out today, particularly you, Captain Bender, for really taking the next steps with respect to what we're trying to do.
     I mentioned earlier that this is extremely important to this committee. I think what's most important is that we take to the next level what's already been established through existing regulations, as well as what continues to be established by folks like Captain Bender, and solidify a pragmatic process or processes with our partners to ensure that the desires of Captain Bender and many other folks, not just here in Canada but around the world, are once again established.
    Madam Chair, I would put forward a recommendation for some direction with respect to the next steps and to have the analysts come back with a report that of course would be established with an expected dialogue with the partners, such as the ministries. I say “ministries” because we've heard from Parks, Environment, Transport, Defence, Veterans Affairs, the Coast Guard, and Fisheries and Oceans, and from Captain Bender himself and the folks who I'm sure you've worked with, Captain, and other partners who would be interested in taking this to the next level. If we can have a report come back with that dialogue being established by the analysts, hopefully we can then make recommendations that in fact will fill the gaps and, once again, take this to the next level.
    Thank you, Mr. Badawey.
    How is our time doing here? Do we still have a chance to give Ms. Sansoucy the last two minutes? Okay.
    You have two minutes, but it has to be a very tight two minutes.


    That's perfect. Thank you.
    I have a quick question for you, Mr. White.
    Do you have an estimate of the number of lives lost and shipwrecks that lie on the bottom of the oceans and that have no legal protection? Do you have that number?


     Captain Bender, with his research, is certainly the best person to ask. I know that he was saying before that there were nine Canadian wrecks, and that up to 1,200 lives had been lost. These are just Canadian wrecks. I couldn't necessarily comment on the broader issue on the ocean.
    One thing that's unique to military wrecks is that the latitudinal and longitudinal positions of the vessels have been recorded. Even something as accessible as Wikipedia has a list of U-boats, Canadian merchant navy ships, and Royal Canadian naval vessels that have sunk in Canadian waters, with their latitude and longitude and the dates they sank. There is a lot of publicly available information.
    I don't know if Captain Bender wants to add anything about the number of wrecks that may exist.


    I would like to ask a sub-question.
    During the first hour of the meeting, we were told that the departments didn't have specific inventories. But from your research, you can tell us that there are 900 shipwrecks and 1,200 lives lost.
    When I was told earlier that there were no specific inventories or year-to-year data, I didn't understand why. How is it that we don't have this precise data?



    We most certainly do have specific numbers. There are indeed wrecks of nine Canadian warships in Canadian territorial waters and wrecks of 10 Canadian flag merchant ships in Canadian territorial waters. At the moment, no legislation regulates the access of persons with ill intent to take souvenirs from these ships. Because of the exemption of warships under international maritime law, there has to be national law to deal with this issue. This is what France has done and this is what Britain has done, to the extent that both France and Britain, founding nations of Canada, have agreed...and in the case of the French, they have done it. They have extended their existing laws to Canadian ships. The Government of Canada, and Canadians as a whole, have done nothing.
    My concern from the beginning, and it will continue for as long as I live, is for those young Canadian sailors whose lives were taken from them and who now lie at the bottom of the oceans entombed in the ships they were serving in. I don't care about the ships themselves. I am very concerned about the fact that there is no respect and no regard paid to these young people, as there is in cemeteries generally. With respect to legislation with regard to cemeteries, in Ontario there is only one law, and that's the Cemeteries Act. Basically it says to keep off, and if you don't, we'll report you to the Department of Veterans Affairs. There's one law; that's it.
    Thank you so much, Captain Bender, for this information today.
    I think based on the conversation and comments we've heard, if the analysts go back, I think they have been as captured and engaged and concerned with this issue as all of us, we'll work together to put together a report. If any members have any further thinking through this process or afterthoughts for the analysts—of course, that's part of what they're doing while they're in the process of coming up with some specific recommendations—those can be given to the analysts.
    Captain Bender, I can tell you that we will not want to let you down. All of us will work to try to see if we can help you move forward with a mission that shouldn't have to be yours, even though clearly you're the one who's assuming leadership. We have a great committee here. We work well together. We will work well with our analysts to see what we come up with. We will be back in touch. Hopefully we can invite you back when we have that report and share that with you as well.
     Thank you, Madam.
    I have two budgets here for the committee to adopt. One is for $800. The other is for $18,000 for the study on automated vehicles.
    If we adopt these today, even though we may change our minds, I'm going to suggest that on Wednesday, when we do the supplementary and interim estimates, we hold back 15 minutes at the end of that meeting so that even if we adopt the budget and then decide to make a change, we just don't end up spending the money.
    Is that okay with the committee members?
    Some hon. members: Agreed.
    The Chair: So I'll save 15 minutes for committee business. We have both ministers coming on Wednesday, the minister of infrastructure as well as the minister of transport. It will be a busy meeting.
    Do I have everybody in favour of these two budget requests that are before us?
    Some hon. members: Agreed.
    The Chair: That's carried. We can have a further discussion, a side discussion, on the automated vehicles as well. All right? Thank you very much.
    Can we possibly get a group photo with Captain Bender, all of us? Wouldn't that be kind of nice?
    Could we get a group photo with you, Captain Bender?


    If you wish, Madam.
    Mr. White and your son can stay there too, please, and we'll stand behind you.
     Before we take the photograph, I will adjourn.
    The meeting is adjourned.
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