On Sunday December 12, 1999, there was a meeting held at the Ontario Underwater Council's office in Toronto, which was attended by concerned divers, dive store owners and dive charter operators, as well as representatives from SOS and POW.
Steve Yormak, a lawyer from London, Ontario, an admiralty expert in shipwreck law, was asked to attend. Mr. Yormak belongs to an international association (ProSEA) of explorers who represent commercial and public interests in regard to underwater activity (including salvage, wreck diving etc.). He is the only sitting Director on the ProSEA Board from Canada. Steve is also currently representing Gary Gentile in his litigation with the City of Hamilton and the Province of Ontario to gain free access to the Hamilton and Scourge.
To start off the meeting, over one hour was spent reading and deciphering the legaleze wording of the Bill. Some may say that the architects of this Bill did not mean this to be as restrictive as it is, but once passed it becomes law. It was decided that this Bill should not be negotiated. Negotiations always involve give and take. This Bill is so badly worded that it should be scrapped, and we must insure that stakeholders (dive shops, charter operators, instruction agencies and the divers themselves) must be consulted in any new attempts at forming such a Bill.
Remember- Unless the Bill is worded very specifically, it is open to the interpretation of both the lawyers and the law makers.
Following is my interpretation of the four hours of discussions held at the meeting.
DEFINITIONS
"heritage wreck" means the abandoned remains of a vessel, aircraft or any other prescribed object that is fully or partially submerged in waters on Crown land in Ontario and has been so submerged for a period of time prescribed by regulation; ("épave à valeur patrimoniale")
We have been told by Toby Barrett's office that an object is to be considered abandoned after three months. Any other prescribed object could include anything from antique bottles, geological formations, snowmobiles or your wife's diamond necklace lost off the dock just before the ice came in. Crown Land is any property not owned by a person or company-it is Crown land if it is on the bottom of any lake or riverbed in Ontario. When it doubt, it is probably Crown Land.
"marine heritage site" means the site of a heritage wreck and its associated debris area and the parts of the lake or river bed that are under them and includes any other parts of the lake or river bed that have been modified as a result of the sinking of the wreck, or as a result of subsequent sedimentary processes; ("aire marine à valeur patrimoniale")
Debris area- What is it? How big is it? How is it determined? At a recent deposition, it was described once as 600' around a wrecksite and later as one mile around the same site. I guess this means that if you find any artifact, you should be at least 600' to a mile away from where you are.
"prescribed" means prescribed by the regulations made under this Act; ("règlements")
Again the big unknown. The regulations won't be made public untill after the Bill has passed (this is apparently normal). We (via my MPP) have requested a copy of the proposed regulations but they have not been made available to us. The regulations are the nuts and bolts rules that we must follow, yet we have no idea what they are, and the wording of the Bill is so simple that it puts no limits or restrictions on what the bureaucrats might come up with in the future. They could possibly (although I admit unlikely) ban diving in the lakes altogether, and there is nothing in this Bill to prevent it.
"protected artifact" means an object in a marine heritage site that was part of a vessel or aircraft that is a heritage wreck or that was in or on the vessel or aircraft before it sank. ("artefact protégé")
Again, an object is described in the regulations. We still don't know what it is.
Ownership
3. The Crown in right of Ontario owns every heritage wreck and protected artifact
Remember your wife's necklace from above. I sure hope you got it (or your snowmobile) out within three months and didn't sit back and wait for the ice to disappear come spring.
Prohibitions
4. (1)?No person shall engage in any of the following
activities unless the person is specifically authorized to do so
by the terms of a licence issued under Part VI of the
Ontario Heritage Act:
The licence mentioned here, is not something you would walk into a park office or dive shop and pay for the priviledge to dive (like a fishing licence). The licence referred to here is actually a permit to conduct an archaeological survey under the existing Ontario Heritage Act. It is a mega page application in which you must show the appropriate educational and archaeological training to conduct such a survey. You are also expected to answer a list of questions and submit a report at the end of the survey. This permit is issued to an individual for a period of one year (renewable for one additional year). It is not something that would let your typical diver dive a wreck.
1. Enter a heritage wreck, or cause an object to enter a heritage wreck.
Most people assumed this to mean "to go inside of " or to "penetrate" the wreck. However, it doesn't say that. When you consider that in an ongoing litigation, the government is arguing that you must stay 600' to one mile (depending on who is asked on what day) away from a shipwreck, it is more likely to mean "enter the area of".
2. Move part of a heritage wreck.
I would agree with this, but what is a heritage wreck? I would still like to get that snowmobile of mine come spring.
3. Remove silt or other naturally occurring substances in a marine heritage site.
It would be nice if this meant things like dredging or airlifting, but unfortunately the problems caused by a diver's fin turbulance disrupting the silt has been brought up in an ongoing litigation.
4. Remove a protected artifact from a marine heritage site.
5. Damage a heritage wreck or a protected artifact.
6. Take any other action that
alters or adversely affects, or is likely to alter or adversely affect
a marine
heritage site, a heritage wreck
or a protected artifact.
4-5-6- Again, we still don't know what protected artifacts, heritage sites or heritage wrecks are. If I bring up my wife's necklace next spring, how many of these rules have I broken?
7. Any other activity specified in regulation.
This is the catch all. Even if you agree with the intent of the Bill, its wording allows the coming regulations to change diving as we know it in Ontario. If the Government cannot word a Bill better than this, how can we expect them to do any better with the coming regulations?
Exception
(2)?Subsection (1) does not apply at such marine heritage
sites as may be prescribed but only with respect to such
activities at those sites as may be prescribed.
We think this means that they might list some historically well dove (stripped or sacrifice) sites that we can dive without permits.
Seizure of property
(3) A person having the power and authority of a member
of the Ontario Provincial Police Force may seize a vessel
or equipment which the person believes is being used
or has been used to contravene this Act.
Sorry sir, but I think you may have been diving somewhere where you shouldn't have been. I'm going to confiscate your boat and equipment, and if you win when you go to court six or eight months from now, you can have it back.
Record of wreck sites
5. The Minister shall publish, in a manner prescribed
by regulation, a record of marine heritage sites known to the
Minister.
Again with the regulations. Do they have the resources and ability to do this (perhaps hundreds to thousands of wrecks). How often will it be updated, and who will determine what wrecks are divable and which aren't?
Discovery of evidence
6. A person who finds physical evidence that a site is
likely a marine heritage site which is not listed in a record
published under section 5,
(a) shall not do anything that may alter or adversely affect the site; and
(b) shall notify the Minister of the nature and location of the evidence and the site as soon as possible.
Better get that list and check it twice, number seven comes next.
Offence
7. (1) Every person who contravenes subsection 4 (1) or
does not comply with section 6, and every director or officer
of a corporation who knowingly concurs in the contravention
or failure to comply, is guilty of an offence and on
conviction is liable,
(a) if the person is an individual,
to a fine of not more than $50,000 or to imprisonment for a term of not
more
than one year, or to both; or
(b) if the person is a corporation, to a fine of not more than $250,000.
Forfeiture
(2)?The court may also order that any vessel or equipment
used in the commission of the offence be forfeited to the
Crown in right of Ontario.
These are without a doubt, among the most severe
(if not the most severe) penalties to be proposed by the Government of
Ontario. Penalties this severe are normally reserved for the Federal Criminal
System. Let's put things in perspective. Someone caught with an old bottle
(well at least three months old) they found in the St. Lawrence or Niagara
River, can be fined up to $50,000, receive one year in jail, and lose their
boat and equipment. If a commercial charter boat, up that to $250,000.
As pointed out at the meeting, The drug smuggler would
be far better off being caught with drugs on his boat than risking having
a weighted package thrown overboard landing in the area of a heritage site.
Commencement
10.?This Act comes into force on the day it receives Royal Assent.
If it hadn't been for a massive e-mail and letter campaign, this Bill could have been rubber stamped by the standing committee and through third reading during the extended hours before Christmas. We have forced hearings on the Bill, but we still need to keep up the pressure.
Short title
11.?The short title of this Act is the Ontario Marine Heritage Act, 1999.
AKA " Lets Stop Diving In Ontario Act"
"This is one of the worst
pieces of legislation ever written; It is the opposite of freedom. It takes
away all your rights as divers and only promises to tell you what you might
be allowed to do in the future."