1st session, 37th Parliament | 1re session, 37e législature
Wed 11 Oct 2000 / Mer 11 oct
2000
Mr Steve Yormak
Fédération québécoise des activités subaquatiques - Mr Roger Lacasse
Ontario Underwater Council - Mr Julien LeBourdais, Mrs Beth Cornwell
Mr Stephen Weir
Mr Julian Colman
Niagara Divers' Association - Mrs Barb Marshall
Advanced/Tech Diving Instruction - Mr Ian Marshall
Mr Donald Macintyre
Technical Diving International (Canada) - Mr Michel Guérin
Mr Jonathan Moore
Chair / Président
- Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Présidente - Mrs Julia Munro (York North / -Nord PC)
Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton
Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North
/ -Nord PC)
Mr Steve Gilchrist (Scarborough
East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina
ND)
Mrs Julia Munro (York North
/ -Nord PC)
Substitutions / Membres remplaçants -Mrs Brenda Elliott (Guelph-Wellington PC)
Also taking part / Autres participants et participantes - Mr Ted Chudleigh (Halton PC)
Clerk / Greffière - Ms Anne Stokes
Staff /Personnel - Mr Jerry Richmond,
research officer, Research and Information Services
The committee met at 1535 in
room 1.
Bill 13, An Act to preserve
Ontario's marine heritage and promote tourism by protecting heritage
wrecks and artifacts / Projet de
loi 13, Loi visant à préserver le patrimoine marin de l'Ontario
et à
promouvoir le tourisme en protégeant
les épaves et les artefacts à valeur patrimoniale.
The Chair (Mr Steve Gilchrist):
Good afternoon. If I can call the standing committee on general
government to order, for the purpose
of considering Bill 13. My apologies for the short delay. We
were busy planning the next bill
to come before committee, starting next week.
SHIPWRECKS/2000
The Chair: Without any further
ado, I'd like to call forward the representative from
Shipwrecks/2000, Mr David Mekker.
Good afternoon. Welcome to the committee. We have 10
minutes for your presentation.
Mr David Mekker: Mr Chairman
and members of the committee, first I would like to thank you
for the opportunity to express
my views today.
Why do I believe that my input is
of value to this committee? I have been an active diver for over
10 years, with 1,000 logged dives.
I am an avid underwater photographer and have recently begun
compiling video documentary footage.
I fell in love with shipwrecks from my very first dive, which
was on the wreck of the Alice G
in Tobermory. As a result of this, I have been part of a group that
has worked hard to promote marine
heritage in the form of a shipwrecks symposium held annually
for the last seven years. This
is Ontario's only full-day dive event devoted solely to shipwrecks. I
have been the chairperson for the
symposium for the past four years and believe that, through this
event, we have played a role in
advancing diver awareness of the importance of marine heritage
preservation.
The shipwrecks symposium brings
in speakers from all over North America, who range from
members of local clubs to international
and renowned professional experts and presenters in the
field of underwater marine heritage.
The symposium attracts over 500 divers and non-divers who
have a keen interest in shipwrecks
from across the province, Quebec and the northeastern United
States into the Welland area. This
in itself gives a greatly needed injection to the regional economy.
Through these symposiums, we have
been able to educate many divers.
Two years ago, the symposium showcased
one of the original Great Lakes shipwreck hunters, who
discovered over 33 wrecks. He commented
that 30 years ago, wreck stripping was not considered
unusual or wrong. He also commented
that there has been a marked change in diver attitude from
"Find a wreck and get whatever
you can" to "Find a wreck and do the historical research and then
preserve it." The ethic today held
by shipwreck divers has become "Take nothing but pictures,
leave nothing but bubbles."
Diver Magazine once described our
show as a "large-scale, must-attend conference for anyone
interested in shipwreck diving."
The proposed bill would hurt our show since no one would come to
make presentations on their explorations,
for fear of prosecution. I have included a copy of last
year's symposium brochure to demonstrate
the type of event we had and the calibre of presenters.
Although Bill 13 is well-intentioned,
I believe it contains some major issues of concern. First and
foremost, any proposed legislation
must contain a guarantee that all wrecks be open to divers. The
currently proposed bill does not
do this. Restricting access to wrecks is akin to telling everyone the
items in the ROM are too valuable
and we will thus lock the doors forever and never allow anyone
to look at these items.
Wreck diving and protecting marine
heritage are not mutually exclusive. The whole issue of
maintaining a list of accessible
wrecks is unworkable. This will keep the law-abiding citizens away
while providing others with a quick
list of sites that are rich for the picking and looting. If we require
a list, it should be by exception
only.
Many questions regarding the formation
of a list remain unanswered, such as: Who creates the list?
How are wrecks added or removed
from the list? What determines whether a wreck should have
restricted access? Does the list
procedure have provisions for an appeal process?
Some have suggested that we should
restrict access to certain wrecks until the money is available to
do a full archaeological study.
How practical is it to expect that this will ever happen?
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Time is also of the essence. Since
the zebra mussels invaded in late 1989, wrecks are being
covered with these crustaceans.
Over time, with the added weight of the mussels, many wrecks
have fallen and will fall apart.
We should allow the diving community to learn about and document
as much as possible of our wrecks
and not wait for government funding that is unlikely to ever
come.
I do agree that artifacts and pieces
of wrecks that are buried in the lake bottom should not be
touched or excavated. These can
wait for future explorations at a time when Mother Nature
decides to reveal them to us or
a formal archaeological study is undertaken.
I do not believe it's advantageous
for the crown to own the wrecks, and I noticed that Mr Barrett
has removed this in the proposed
changes to the bill. Clearly, assuming ownership of the wrecks
opens up a new area of legal liability
that the province may not want.
The wording of section 4, "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," does not
allow for open access to wrecks. In fact, item 1, restrictions on
entering a heritage wreck or causing
an object to enter a heritage wreck, will cause many people to
go elsewhere to go diving.
The proposed bill is also worded
in such a way that it is not clearly understood what activities
would be allowed on a marine heritage
site. The terms of a licence issued under Part VI of the
Ontario Heritage Act are unworkable
as applied to marine heritage. The licence deals far more with
land-based sites and doing exploration
of sites.
Any plan to limit access to a wreck
must include a way for groups to visit a wreck for non-research
purposes. This would even include
wrecks such as the Hamilton and Scourge and could be
accomplished through some sort
of notification procedure.
The issue of reporting a wreck to
the minister should also be given some additional thought, since
once it's given, it must become
a matter of public record and the wreck is now open to all. The
legislation will only keep the
honest people away from the wreck.
Where does all this leave us? In
my opinion, the proposed Bill 13 will kill sport diving in Ontario, as
well as hurt tourism. The few remaining
wrecks open for diving will not be the ones people are
willing to travel to see. For instance,
I would be going to New York state instead of Kingston to do
my diving if this bill was to pass.
I do not think we need to start
from scratch to develop a framework to preserve and protect our
valuable marine heritage. Many
good examples of legislation already exist, and some of them may
be used as a model should legislation
even be required.
Three activities need to be prevented
to ensure marine heritage preservation: (1) recovering,
altering, destroying, possessing
or attempting to recover, destroy, alter or possess an underwater
cultural resource, (2) drilling
into, dredging or otherwise altering the lake bottom associated with an
underwater cultural resource, and
(3) the use of grappling hooks or other anchoring devices on
underwater cultural resource sites
that are marked with a mooring buoy.
While I would like to take credit
for identifying these three issues, I must admit I lifted them directly
out of the NOAA Thunder Bay national
marine sanctuary report. I have included in my handout
part of section 3, the management
plan. This is an example of one of the plans we could use to
manage resources. In their plan,
they do not restrict access to any wreck, but still have a viable plan
to protect the marine resources.
As another example, I have included
a flyer on shipwreck diving in Michigan put out by the
Michigan Underwater Preserves Council.
Their law authorizes preserving abandoned
property--shipwrecks, etc--on the
bottomlands of the Great Lakes, designating underwater
preserves, issuing salvage permits
where appropriate, and fines and penalties for illegally removing,
altering or destroying artifacts.
The law does not restrict searching for, diving on or photographing
shipwrecks.
I also do not believe the Ontario
Heritage Act should be modified for the purpose of covering
marine heritage. If we still believe
some form of legislation is required, in my opinion the only viable
option is to start over with a
clean slate, but this time we should consider what other provinces and
states have done and use that as
a starting point. We then need to include all stakeholders and
come up with truly effective legislation.
These stakeholders should include not only groups such as
charter operators, OUC and SOS
but also other groups such as my own and major dive clubs
within Ontario. I would be willing
to offer my assistance and participation on such a committee.
Thank you. If there's any time, I'll answer questions.
The Chair: It's pretty tight,
but we'll start the rotation with the Liberal Party. You've got about a
minute and a half.
Mr Dave Levac (Brant): As
the legislation presently stands, and I'll say that even if you have had
time to review the amendments--could
you support the bill as it presently stands?
Mr Mekker: With the amendments?
No. I still have some issues with it. Primarily, the whole issue
of a list of what wrecks are diveable
and not diveable is the main issue.
Mr Levac: One of the things
that came out in the hearings so far has been the proper building of
moorings for the ships. Do you
agree with that analysis?
Mr Mekker: Absolutely. Actually,
the club I'm a part of has worked in Lake Erie to install some
of those moorings. Part of the
document I gave you from the NOAA talks as well about the need
to moor them and the program they
put in place to address that.
I made one copy of the entire report
that I thought I'd leave as well, just in case you want to look at
it further.
The Chair: Thank you very
much, Mr Mekker. We appreciate your taking the time and your
thorough presentation. We appreciate
also the handouts you brought from other jurisdictions. I'm
sure the clerk would be happy to
take the report you've copied there and keep that as a resource
for the committee.
SCOTT MCWILLIAM
The Chair: Our next presentation
will be from Mr Scott McWilliam. Good afternoon. Welcome to
the committee.
Mr Scott McWilliam: Good
afternoon. It's been 34 years since I did my first dive. I've done
7,387 dives.
This is archaeological licence 2126.
There's been a lot of discussion about archaeology. Too bad
no one is doing any. There are
only 12 licences issued at the present time to study shipwrecks in the
Great Lakes by the province of
Ontario and half of those are inactive. For an archaeologist, this bill
is counterproductive. It does not
help me.
In addition to archaeology, I'm
an historian and a social anthropologist. As an historian I study
marine history. As a social anthropologist
I study diving.
Initially I'd just like to say that
I respect everybody who runs for public office. It's difficult with
today's media. Every time you misspeak
or scratch your nose, someone's got a camera in your
face. Also, during the time that
I've been writing and corresponding with you, I've been recovering
from a very serious industrial
accident. I had my knee really smashed up and had two
reconstructive surgeries. In reviewing
my own correspondence to the different MPPs, some of it
was a little less than diplomatic,
and I'd like to apologize for it. But it was sincere and I do reserve
my right to be a passionate Canadian.
All of you were sent a copy, on
December 20, of a short videotape entitled Drowning in Dreams.
It's a film that I wrote. It was
produced by the National Film Board of Canada, a 1997 Genie
nominee. The lesson to Drowning
in Dreams, if you have an opportunity to screen it, is a study of
divers. Divers and their association
with shipwrecks are characterized by particular types of
behaviour which we can describe
as obsessive.
I've got a real pile of letters
here. Thank you very much for writing. The one signed by Mr Barrett,
"Thank you for the mutiny," might
be a little melodramatic, a token.
As an historian I have some specific
concerns with Bill 13. If you read the Ontario Heritage Act,
you will find that the word "shipwreck"
or "wreck" does not appear anywhere in the act. This is not
because they did not realize that
shipwrecks were important archaeological entities when that act
was penned in 1995 but because
there exists a specific legal problem associated with shipwrecks.
Unlike Mr Barrett's office, whose
researchers drafted the first incarnation of Bill 13 in 11 days,
there was a little bit more time
spent looking into the Ontario Heritage Act. Essentially the problem
with shipwrecks is that the British
North America Act, 1867, the powers of Parliament, section 91,
subsection (10), Navigation and
Shipping, clearly places all things to do with shipping in the domain
of the federal government.
The Canada Shipping Act uses the
word "wreck," or a derivative thereof, 205 times. In part VI,
"Wrecks, Salvage and Investigations
into Shipping Casualties" of the Canada Shipping Act deals
specifically with shipwrecks and
clearly defines them as the domain of the federal government and
defines the role of the research
of the wreck.
The BNA act, the same act that gives
Canadians the right to two official languages, defines
"shipping" as a federal entity,
and the Canada Shipping Act deals directly with shipwrecks. Mr
Barrett's proposed legislation
is unconstitutional and would be just as illegal as a bill dictating that
everyone in Ontario must speak
French. This is only one of the many problems with this bill, which
I believe was ill-conceived.
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There is a very real question as
to exactly how much of Ontario's bottomlands the province has any
claim to at all. Under the Territorial
Division Act, I suspect you'll find, if you research it, that the
municipalities actually own the
bottomlands out to the international border, rather than the province.
Bill 13 is an appropriation. Ontario
is taking something away from the government of Canada that
does not belong to it.
I think you've correctly identified
the significance of shipwrecks. They are very important to our
understanding of Canadian history.
When you all went to school, you probably learned some kind
of myth about Gordon Lightfoot
and Pierre Berton and a ribbon of steel that was used to put this
nation together. There were things
that the railroad joined together. Our understanding of the
communities, the fabric of nationhood,
doesn't lie along the sides of the railroad track that stretches
from coast to coast; it lies on
the bottom of Ontario's and Canada's lakes and rivers. When people
remove artifacts from shipwrecks,
it's like pulling words out of a book that tells the story of this
country. Ontario is now doing exactly
the same thing that divers who remove artifacts from
shipwrecks are doing. Instead,
you are doing it on a grand scale. You are removing volumes G
through M from the archaeological
record.
I encourage you to put an end to
Bill 13 and move this up a level of government. Let's deal with this
in Bill C-35 currently before the
federal government.
I find section 6(b) of Mr Barrett's
bill particularly offensive. This is essentially a state-sanctioned
appropriation of intellectual property.
As I see it, Bill 13 has brought a great number of issues to the foreground.
Ontario is essentially out of the
shipwreck business. Any involvement by the province on any
shipwrecks involving any divers,
as I see it, is interloping in a federal matter, and any diver
prosecuted by the province may
have a reasonable expectation of a successful legal remedy.
What happened here? Is this about
Bill 13? What we have are people who are involved in the
Ministry of Citizenship, Culture
and Recreation. We have one provincial underwater archaeologist
who had a vision, who had a dream.
There's a vague line under the Ontario Heritage Act that
requires the province to acquire
new archaeological sites, and with this mandate he went forward,
regardless of the law, to try to
get this.
Ontario has been shelling out approximately
$26,000 a year to save Ontario's shipwrecks and has
fans. They have people who have
been educated toward the conservation ethic. Save Ontario
Shipwrecks has been very successful
in educating the divers of Ontario toward the conservation
ethic.
This has to do with current, ongoing
litigation. Strings were pulled; calls were made. Jim Murphy
has been mentioned in the House
by Mr Barrett. Jim Murphy received $20,000 from the
government of Ontario to go out
and look for shipwrecks. You were also sent a copy of my brief in
December. It outlines how that
was a misexpenditure. They plagiarized. They represented other
people's data as their own. The
one rule in government, in the civil service, is "Cover your own
butt," and everybody up the line,
from one end to another, has successfully stepped around this
problem. Nobody is prepared to
admit that there's any kind of wrongdoing involved here.
Litigation is now pending in the
city of Hamilton involving a US diver who would like to go diving
on the Hamilton and Scourge shipwrecks.
He has applied for archaeological licences for, I believe,
three or four years. He has been
denied. The only reason anyone can be denied an archaeological
licence is competence. Under the
act, he is competent. There is no legal mechanism, as I
understand it, to prohibit diving
on the Hamilton and Scourge. Subsequently, the ministry phoned
their fan club at SOS, Port Dover,
wrote a letter to Mr Barrett, said they could have Bill 13
brought in and it would intercede
and change the law prior to this matter going to court.
I have never seen more obsessed
or more manipulative people than the Ministry of Citizenship,
Culture and Recreation. They were
sanctioned from the bench by Judge Lissaman during the
Atlantic trial, they have been
sanctioned by the Ontario Human Rights Commission, and I now
believe they have perjured themselves
in the Hamilton and Scourge matter.
This is not the fault of one particular
person. What's happened here is that with all the various
governments, all of the various
cutbacks, resources dwindled away and away. In the archaeological
community I met with friends of
mine who are archaeologists in Quebec City, the Society for
Historical Archaeology, and we
talked about Peter. As far as we know, Peter pretty much snapped
around 1987. He was so alone and
so stuffed away in his little world in Ottawa, nobody in the
ministry even noticed.
I think there are serious problems
with this bill. I think the correct thing, the gentlemanly thing, to do
is to withdraw it in total. Any
questions?
The Chair: Actually, you're
bang on your use of time, but I want to thank you, Mr McWilliam. We
certainly heard considerable discussion
and we asked the legislative researcher to prepare a paper
about potential conflicts between
provincial and federal legislation. He would suggest a different
result of that consideration than
you have, but you've raised a number of issues and the researcher
will go out and bring back information
to the committee.
Mr Toby Barrett (Haldimand-Norfolk-Brant):
On a point of order, Mr Chair: I would like to
correct the record. I did not write
a letter or sign a letter that said, "Thank you for the mutiny." I
sent out letters to everyone, the
same letter, and I don't think that was in the letter. I just wanted to
mention that because there has
been an awful lot of misinformation and confusion over the last few
months.
Mr McWilliam: Mr Barrett is lying. Thank you.
The Chair: Thank you, Mr McWilliam.
Mrs Marie Bountrogianni (Hamilton
Mountain): Could I ask the legislative library to look into
other possible provincial--we have
that?
The Chair: You've got it
on your desk there. It details all the provincial laws that research has
ascertained are pertinent to the
situation before us.
STEVE YORMAK
The Chair: That takes us
to our next presentation, Mr Steve Yormak. Good afternoon, Mr
Yormak, and welcome to the committee.
Mr Steven Yormak: Good afternoon.
I see we're only allowed 10 minutes. I must confess I
usually feel pinched if a judge
at a trial gives me half a day, so I'll try to keep this brief.
I should applaud the committee as
a whole, to start with. First of all, it's a laudable goal. You've
heard this before; it is. What
we're trying to do is save the heritage, not only for our own generation
but for future generations. I don't
think there's anyone in this room or outside this room who would
disagree with that. But as often
happens in many of these situations, what starts out as a very simple
process ends up anything but, and
complications and unforeseen developments occur which you
just couldn't contemplate. I think
that is what has happened to this committee.
I should mention to you before I
launch into some of what I have to say to you from a legal
perspective that I'm a barrister
and solicitor. I've represented varied interests here in Ontario,
locally, nationally and internationally.
I'm a founding director of an organization called ProSEA, an
international group. It stands
for Professional Shipwreck Explorers Association. We have
representation in Paris under UNESCO
for exactly this issue, which is underwater cultural heritage.
So I'm well familiar with the problems
you're dealing with, not only from your local level but straight
up, nationally to the international
level.
I can assure you, if you're somewhat
confused by what's going on here today, if you were at the
plenary in July in Paris, you would
have seen entire nations confused by the same issues. It's a very
difficult area. You're dealing
with colliding interests between archaeologists, management,
government, private salvers, explorers,
public access and the diving community. Each one has a
slightly different view, to say
the least, and you're trying to combine all these interests in one piece
of legislation. I applaud the effort
but I'm afraid you're looking at a Herculean type of effort because
you just can't do it. If I could
just have you sit in one of the committee meetings that I've sat through
in Paris, to hear all the experts
who really know this inside out, and they cannot agree--and that's
not even to begin to tackle what
I'm here today to talk about, briefly I hope, the legal issues. And
there are substantial legal issues.
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First, I'd be most interested to
hear what your legal counsel says about what I'm about to talk
about, which is the clash of the
federal domain versus the provincial. I am in litigation. Right now I'm
in the course of putting forward
this view, so perhaps title this "editorial comment" from an
advocate, but the fact is I don't
think the federal government would disagree. This is their baby, to
put it that bluntly. Shipwreck
is their domain. Mr McWilliam put a number to it. To put it a little bit
more in context, it stems from
our founding document, the British North America Act, 1867,
section 91. Without getting very
detailed, it's very simple, and it says that shipping and navigation
are in the federal domain.
If you're wondering what the Supreme
Court of Canada has said about that, uniformly through the
years, particularly the last 10
years, and as recently as a year ago, they have reaffirmed that
anything to do with maritime law
is in the domain of the federal government. Specifically, cases of
shipwrecks have not come up yet,
but because the Supreme Court of Canada has uniformly said
that if it relates in any way to
maritime law, and of course shipwreck law is maritime law, it will be
held to be in the federal domain.
That would explain why the federal government is, as we speak,
so busy now redrafting their legislation,
called Bill C-35, which is the Canada Shipping Act. It's
going to be called the Canada Shipping
Act, 2000. Under the new proposed part 7, they will
specifically address the issues
of shipwreck law, ownership, regulation and, oddly enough, exactly
what this committee is talking
about, heritage wrecks.
What you're doing right now, unintentionally
with the greatest of intentions, is asking for a
showdown with the federal government.
That's what's going to happen, because if their legislation
goes through, they are going to
regulate the very shipwrecks you're purportedly doing with your Bill
13. No matter how you amend it,
no matter what you do with it, you're still dealing with a
shipwreck. I have the bill here
with me today, if any of the members want to take a glance at it. I'll
show you part 7. The beginning
of it says, "Wreck" and right in section 165 it refers to "historic
shipwreck."
I don't know whether the committee
has received some of my main conclusions and
recommendations. First and foremost,
common sense dictates, for gosh sakes, let's get together
with the federal government and
see what they're up to because there are liaisons, there are
complementary things, in my personal
view, that the provincial government needs to do to
complement the federal government
goals. If they say we need to do regulation of historic
shipwrecks, their intention is
to do it through the receiver of wrecks, which I happen to agree with.
It's a long-standing mechanism
we've had in our English jurisprudence for hundreds of years that is
used for dealing with shipwrecks,
navigation and shipping, and it's done, practically speaking, for
anyone who doesn't know, through
the Canadian Coast Guard, which makes sense. I've talked to
our Canadian Coast Guard receiver
of wrecks. They're not entirely enthused about taking on the
world of archaeology and historic
shipwrecks, but they're willing to do it. It remains to be seen how
that will be affected.
But can you imagine, if a bill goes
through from provincial environs, what will happen if it doesn't
match perfectly with the federal
regulations? When a client comes to me or any diver wants to go
out, practically speaking, to a
historic shipwreck, do you know what he's got to do? He's got to
check with who knows how many departments
provincially perhaps and then go to the federal
government and say, "What do you
fellows think? What are your regulations?" This is all just to do
a simple dive. What you have here
is a clashing.
Whether the provincial Legislature
passes this bill remains to be seen. Notwithstanding that, the
federal government will almost
certainly pass their bill and likely overtake your bill. If that's not
enough, what you're asking is for
we lawyers to make a better living than we already have and go
to court and win yet another case,
because someone's going to be wrong in that situation.
All this is really for the best
of intentions, and I applaud Mr Barrett. He certainly had the best of
intentions in going into this.
As I said in my opening, I don't think he ever expected, in such a simple
mom-and-apple-pie type of problem,
to have this kind of reaction, but I do think it is just strewn
with problems.
What I propose to do is, and I told
Anne this, I will cut short my time in case anyone has questions,
particularly from a legal perspective,
and I'll try to keep it brief.
The Chair: Thank you. We
have about two minutes left. This time in the rotation we'll start with
Mr Marchese.
Mr Marchese: Thank you, Mr
Yormak. I'm assuming that your interest is more than constitutional
or jurisdictional.
Mr Yormak: It is twofold. I'd like to think I represent--
Mr Marchese: I'd like to
hear your other concerns. Let's put aside the fact that there may be
some constitutional discussions
and that one may override the other and that we might be in a war
with each other and you might make
more money as a result of having to take legal work to do this.
Mr Yormak: Or someone might.
Mr Marchese: Let's put that aside.
Mr Yormak: Of course.
Mr Marchese: What is your
other either interest or preoccupation with the bill by way of its good
aspects, negative aspects, how
you would fix it etc?
Mr Yormak: It's self-defeating.
What I mean by that is, the intention is to open up public access; it
does the opposite. I'm talking
from a legal perspective, not necessarily an archaeological one. Your
Ontario Heritage Act is an archaeological
act. To get a licence, you have to be an archaeologist. I
can't get it, I can assure you.
I could be retired at 65 and apply 100 times and I will not get an
archaeological licence under the
Ontario Heritage Act. That's what you're proposing your licensing
system be.
I heard some suggestions, amendments,
"Look, it's not going to apply"--I've heard this and I don't
know if this is a fact--"to 95%
of the wrecks." Who's going to decide that? Will it be the industry of
people behind me, will it be the
divers or will it be archaeologists? This is a very big problem that
we have in the international sphere.
You're going to run into it, and we're going to run into it
federally as well.
Who's making these decisions? You
wonder, why is it always archaeologists making these public
access decisions? There's a very
simple reason for it. Fifteen or 20 years ago when all this came to
the forefront it was a very unpopular
type of issue. No one wanted it. So who did it fall to? The
archaeologists. That's why you
hear archaeologists are the ones who give you your opinions today.
I have a friend, Ken Vrana, who's
a management expert, a Michigan State PhD. He is very big on
what the federal people in the
United States are doing, that this is a management issue, not an
archaeological issue. Archaeology
should be one of many aspects. Tourism is another aspect;
access to the diving community
is another aspect; charter. There should be a manager who decides
this, not an archaeologist. I find
no fault with archaeologists. What is it they do? It's like saying to a
lawyer, "Don't give me a lawyer's
answer." Of course we'll give you a lawyer's answer. Ask an
archaeologist and what answer are
you going to get? You're going to get an archaeological answer.
That's not what we should do, and
we're at fault if we give them that authority.
I'm not making archaeologists happy,
even those behind me, but that is my view. It should be a
management problem. Are there precedents
for it? Yes, there are, plenty of them, all over the
world. Tobermory is Parks Canada.
They have allowed diving on wrecks. It's not the pristine,
vintage type. There's a Mr Murphy,
who some of the people behind me are well familiar with, a
very high-ranking US parks official,
who has said, "You know what's wrong with what you're doing
up in Canada? You're not dealing
with it as a management problem." What you should be doing is,
if there's a risk, and we all recognize
that we don't want to damage our own history, then deal with
it. Don't prohibit it, deal with
it. So you have licences that are not archaeological licences; they're
user permits perhaps. There's an
enforcement procedure. There's a way of overseeing it. There are
many different approaches that
could be done, and Bill 13 contemplates none of this. It's
prohibitory in nature.
The Chair: Thank you, Mr
Yormak. We appreciate very much your perspective and your
comments here today.
Mr Yormak: I just feel a little cheated. My half a day is still to go.
The Chair: Thank you.
FÉDÉRATION QUÉBÉCOISE DES ACTIVITÉS SUBAQUATIQUES
The Chair: Our next presentation
will be from the Fédération québécoise des
activités
subaquatiques. Welcome to the committee.
Mr Roger Lacasse: Thank you
to the committee for having us here. I'm a member of the
administration council, not the
president as was stated on the schedule today. I'm here to present to
you our position on Bill 13.
I will start by introducing our
organization and then, although marine heritage is a laudable cause,
we have many concerns concerning
the present wording of Bill 13 which I'll express. I'll go over
some existing wreck protection
we think exists in the Canada Shipping Act, and then we'll proceed
to comment on amendments that were
proposed by Mr Barrett last spring, and we'll suggest some
more that we would like to see.
We'll conclude by presenting our recommendations to the
committee.
1610
The Fédération québécoise
des activités subaquatiques, or the Quebec Federation of Underwater
Activities--FQAS for short in French--was
founded in 1975. It counts over 1,000 members, 67
clubs and more than 31 dive shops.
The FQAS provides a common voice for all the divers of
Quebec. Its mandate is to promote
safety in diving and defend the interests of scuba divers. We
also keep our members informed
of events that happen in the diving world through our quarterly
publication; I've given a sample
in the handouts today. Recently, the FQAS has received a mandate
from the Quebec government to help
write the regulations that accompany the law that now
regulates scuba diving in Quebec.
We've also received a mandate to help implement the regulations.
I'll now present the concerns we
have regarding Bill 13. One of the biggest concerns we have is the
indiscriminate approach to wreck
protection that is the main part of Bill 13. By default, every wreck
from the start is considered to
have heritage value until it is specifically excluded from a list. This
means that a licence will be required
initially, or until a list is known, to dive any wreck. These
licences are essentially archaeological
licences, which are really not attuned to the realities of scuba
diving. They are delivered to a
single person for exploring a single site for a determined period of
time. It's really not what we need
in terms of the scuba diving industry.
We find it overly restrictive in
many areas, especially the prohibitions. According to the bill, it will
be illegal to enter a heritage
wreck. A wreck penetration is an essential part of the wreck diving
experience. It allows you to get
an intimate feeling for the size of the wrecks, the way they were
built and the life that inhabited
them. Removing this possibility from wreck diving is like cutting half
the fun of doing a wreck dive.
We think that the prohibition of
moving part of a heritage wreck is not necessary. Especially for
exploring larger wrecks, to gain
access to the inner parts of a wreck you will sometimes need to
open a hatch door or move some
wreckage that, in our minds, will not adversely affect the
historical content of the wreck,
but would allow a better experience from a scuba diving point of
view.
Of course the prohibition from removing
any silt or naturally occurring substances has been flagged
as very controversial, because
as soon as you swim over a wreck you're likely to disturb the
sediment or the fauna that are
around the wreck. FQAS finds that the prohibition from taking any
action that would likely alter
or adversely affect a wreck is much too broad and leaves too much
room for interpretation. Scuba
diving will always be likely to eventually cause damage to a wreck.
So will activities like fishing
or boating over a wreck; you can always drop an anchor on top of a
wreck by accident. So we think
this prohibition is much too broad.
Unnecessary issues are also introduced,
like property of the shipwreck. In the province of Quebec
we have a very famous shipwreck,
the Empress of Ireland, which has been protected for the last
two years. In that case, all the
government of Quebec had to do was to declare it to have heritage
value. There was no need for claiming
ownership. All that was done was to say that it had heritage
value, and from that point on any
modifications that somebody wants to make to that wreck,
namely, take souvenirs, have to
be approved by the Quebec government, which is sufficient to
discourage most people. If people
are not respecting this, it is complemented by the Canada
Shipping Act, where you have to
declare any wreckage that you remove from the water.
Bill 13 also creates some duplication
with existing federal legislation, in our opinion. One of them is
the obligation to report the finding
of a wreck. That's something you already have to do under the
Canada Shipping Act. Now you would
have to report it to two places. Stiff fines, prison terms and
seizures are already present in
the Canada Shipping Act, are already present in the Ontario
Heritage Act. That would be one
more level of fines that we think is unnecessary.
The proposed record of marine heritage
sites would be somewhat redundant with the one that is
already maintained by the receivers
of wrecks. They maintain a record of all known wrecks across
Canada. We think a simple agreement
between the two levels of government there could ease the
process.
We especially have some concerns
about the access to wreck sites. In our minds, limiting access to
wreck sites is basically limiting
the possibilities of enforcement of any conservation act. Contrary to
what some people might think, we
think that scuba divers nowadays are the best protectors of
shipwrecks possible, especially
in a context where funding is low. Having people who have at heart
the conservation of marine heritage
and visit sites regularly will ensure that wreck protection is
enforced. Dive charters, particularly,
have the highest interest in protecting these sites because their
livelihood depends on being able
to bring people to sites that are well protected and as interesting
as possible.
As tourists, we're also concerned
that the availability of the marine heritage site records--if I want
to plan a scuba diving outing in
Ontario, I will need to consult this heritage site record beforehand to
make sure that the wrecks I'm planning
to dive and that I used to dive are still accessible, that
they're not off limits. We're concerned:
is this record going to be accessible on weekends, on
holidays?
We also have concerns regarding
the regulations that are going to accompany this act. We would
like to know who is going to decide
what is a heritage wreck and how long this process would
take. From the day this bill is
implemented, if it takes too long, if it takes even one season before
we know which wrecks we can dive,
that, in our minds, is probably enough to kill most of the
diving industry in Ontario. If
you remove one season of diving from all the diving charters, most of
them will just quit.
What we would like to see is a committee
of people from the government, the archaeological and
the scuba diving industries sit
together on a redaction committee in order to come up with the
regulations accompanying the act
that would have a better chance of achieving realistic conservation
and sustainable industry development.
In our opinion, the present wording
of Bill 13 creates many duplications with existing Canadian
legislation, namely, the Canada
Shipping Act. Through the Canada Shipping Act, receivers of
wrecks--there are 20 of them throughout
Canada--are responsible for tracking the findings of
wrecks. There's an obligation to
report any wreck, be it the entire ship or just a piece that you find
out of water. Part of their mandate
is also to notify the heritage department if they think there is
evidence that some wreckage might
belong to a wreck that has heritage value.
1620
Moreover, the Canada Shipping Act,
as was said before, is presently in the process of being
completely reformed. Instead of
just implicit measures, it will now include explicit measures for the
protection of marine heritage.
It is also going to apply to all Canadian waters, not just federal
waters. We think that any legislation
at the provincial level should be made so it's complementary
with what is going to exist at
the federal level, and not duplicate what is going to be CSA 2000.
Last spring, Mr Barrett proposed
a few amendments that essentially consisted of deleting three
paragraphs: 4(1)1, 4(1)3 and 4(1)7.
Although these amendments would remove some of the more
controversial aspects of Bill 13,
they would leave intact the need for permits for visiting heritage
sites. They would prevent people
from diving the most sensitive sites, monitoring their state and
preventing looting.
If completely rewriting Bill 13
is not an option, at the minimum we would like to see a deletion of
section 3 to remove the ownership
issue, deletion of paragraph 4(1)2, moving part of a heritage
wreck, and paragraph 4(1)6, taking
any other action that may alter or adversely affect a marine
heritage site, heritage wreck or
a protected artifact. These amendments would not remove the
duplication the bill creates with
the federal legislation, but at least they would minimize its impact on
the diving industry.
We would also like to see guaranteed
access for the scuba diving public on all sites. This would
allow a constant monitoring of
the sites and it would be compatible with diving industry
development.
All of these amendments are not
small changes. The fact that they have to be done at this point in
the process is symptomatic of a
bill that is ill-designed and not fitted for the proper development of
the diving industry. For all of
these reasons, we recommend that Bill 13 be put aside until proper
consultation of the diving community
can be held.
The Chair: Thank you very
much. You timed yourself perfectly there. I appreciate the perspective
you brought from another jurisdiction.
It certainly has been very interesting for us. So far today
we've heard facts from Michigan
and now from Quebec. Thank you very much for coming this way
and making your presentation.
ONTARIO UNDERWATER COUNCIL
The Chair: Our next presenters
will be the Ontario Underwater Council. Good afternoon and
welcome to the committee.
Mr Julien LeBourdais: Thank
you, Mr Chairman. We appreciate the opportunity to be here
before you. We are representing
the Ontario Underwater Council.
First of all, I'll give you a little
bit of an overview of what the OUC is. The Ontario Underwater
Council is the largest voluntary
underwater council in Canada. With a membership base of about
2,500, the OUC represents scuba
clubs and their members, retail dive stores, dive charter
operators, members of the travel
industry, training agencies and individual divers across Ontario. A
number of the individuals and groups
making their own presentations to this committee are also
OUC members and supporters.
Early perceptions: the second reading
passage of MPP Toby Barrett's private member's Bill 13 in
November, 1999, certainly caught
the scuba diving community by surprise. Hurried meetings were
held. Letters were written. A flurry
of e-mails were dispatched; I'm sure you all got lots of them.
The perception was that scuba diving
as we knew it would soon become severely restricted. Retail
and charter operators were concerned
about losing their livelihoods. Many of us were concerned
about an increase in bureaucratic
red tape. There were rumours flying around last fall in the diving
community that Bill 13 would be
quickly passed into law before Christmas. Fortunately, this did not
occur.
A year of consultation and discussion:
It is quite possible that neither Mr Barrett nor the other
members of this committee fully
anticipated the uproar caused by the introduction of this bill. To his
credit, Mr Barrett took the time
to meet personally with many of the groups and individuals who
were concerned about losing the
right to dive on Ontario's many shipwrecks. Many of the groups
making presentations to this committee
have consulted with Mr Barrett over the past year.
In March of this year, Mr Barrett
accepted the invitation of OUC President Beth Cornwell, seated
beside me, to visit Underwater
Canada, the largest consumer scuba show in Canada, produced
each year by the OUC. While touring
the show, Mr Barrett had the opportunity of speaking
personally with many of the individuals--sport
divers, dive store owners, charter boat operators and
instructors--who had expressed
concerns about the proposed legislation.
During his visit to Underwater Canada,
Mr Barrett supplied us with some proposed amendments to
Bill 13. Earlier this month, Mr
Barrett produced some additional proposed amendments. Together,
these amendments went a long way
toward satisfying many of our concerns.
Where do we go from here? The Ontario
Underwater Council feels that a fully researched and
comprehensive marine heritage act
would be of benefit to all citizens of Ontario. Scuba divers are
also citizens and we share their
concerns about protecting our natural resources, history and marine
heritage. We believe it is possible
to establish policies and regulations that would not only
encourage responsible sport diving
but also ensure that future generations can continue to travel
back in time by viewing historic
shipwrecks that remain undisturbed.
We believe that marine heritage
should not be limited to shipwrecks. Submerged locks, villages,
railways, fur trade portage routes
and underwater construction sites might also be historically
significant.
We believe this bill was a good
place to start but that it needs to be more encompassing to
adequately protect the interests
of all Ontarians, not only scuba divers.
There are four recommendations here:
1. Notwithstanding that Bill 13
was drafted with good intentions and that the proposed amendments
are an improvement on the original,
the OUC recommends that it not be passed in its present form.
2. Recognizing that the bill needs
to be further encompassing to protect the interests of all
Ontarians, the OUC recommends the
bill be significantly altered and expanded before it is again
presented to the Legislature.
3. Recognizing that the sport diving
community will be significantly affected by any legislation in this
area, the OUC recommends that a
dialogue be maintained between government and major
stakeholders in the sport diving
community.
4. Recognizing the OUC's role within
the dive community, we would be prepared to assume a
leadership role in helping the
major stakeholders reach a consensus. Our goal would be to provide
information and assistance to the
ministry, helping them draw up a fully comprehensive marine
heritage act of which we could
all be proud.
It's a relatively short brief which
we've gone through quickly just to allow some time for questions. I
didn't identify myself. My name
is Julien LeBourdais. I am the director of special events for the
OUC. I identified Beth, who is
the president. We would be happy to take any questions.
The Chair: Thank you very
much for your presentation. You have afforded us some time. We will
start the questioning with the
government caucus. Mr Barrett, you have about two and a half to
three minutes.
Mr Barrett: I wish to thank
the Ontario Underwater Council for coming forward as a delegation. I
haven't had an opportunity to thank
the other delegations as well.
You mentioned amendments that I
distributed to 200 or so people I have been in touch with in the
spring. I yet again received more
feedback on those amendments. You may be aware that, just in
the last few days, there is yet
a second series of worked-over amendments to address some of the
feedback that I received. The purpose
of this committee is, with the assistance of the dive
community and the heritage community,
to continue to fine-tune this.
Under your recommendations, I'm
not sure whether you make any specific amendments. In light of
several of the previous concerns
from Quebec and Mr Yormak about Bill C-35, the federal
legislation, 11 months ago we knew
that was being looked at and it's still being looked at.
For that reason, I am proposing
an amendment to section 10, which originally states that the act
come into force on the day it receives
royal assent, to have some flexibility for the province to wait
on the federal government with
the Canada Shipping Act amendments that may come forward.
We've changed that to state that
this act comes into force on a day to be fixed by proclamation by
the Lieutenant Governor. This allows
the time frame to be extended until other issues get resolved,
like ongoing litigation perhaps,
or possible effects on Ontario's or Quebec's interests with respect to
any changes that may be forthcoming
with Bill C-35.
Chair, do I have time for another issue?
The Chair: Very quickly.
Mr Barrett: You may have
received the latest round of amendments in the last few days. They
address two main areas. There is
the issue of access. The limited access is merely for 15 or 20 of
these heritage wrecks, not the
400 or 500 wrecks and other yet-to-be-discovered wrecks out
there. Second, they address the
issue of lists and how lists should be put together.
1630
Mrs Bountrogianni: My question
is related to Mr Barrett's question. How do you marry the two,
Bill C-35 and this potential bill?
With all due respect to Mr Barrett, amending section 10 to say until
you see the implications of what
the federal government is doing, what if they are contradictory?
Wouldn't it make more sense just
to table this until the federal government looks into it? What is
your opinion of the federal-provincial?
Mr LeBourdais: I can't claim
to know much about the federal bill. We'd have to look at it. That's
almost another issue. If it's a
jurisdictional thing, the two jurisdictions have to figure out who is in
charge here. Our overriding concern
was that there are so many things that need to be addressed
that if this committee did it,
with all due respect, they could meet every week for the next year
before they went through it--things
having to do with the exact list. People have talked earlier about
a debris field. What exactly is
a debris field? That kind of thing can be debated at great length.
The reason we're suggesting it could
be moved elsewhere is that we think it's important for the
overall marine heritage of the
province, which, as I said, is more than just shipwrecks, and perhaps
it's something better done by the
ministry or some method like that. Does that answer your
question?
Mrs Bountrogianni: It adds to my concern.
Mr Rosario Marchese (Trinity-Spadina):
Given that Mr Barrett has raised this whole issue of
literally passing the bill and
then waiting for it to be proclaimed until the federal bill, I'm not sure
that's an appropriate way to go.
I wouldn't pass it and simply hold up proclamation until we see that
bill, because that will present
its own problems, in my view. If we're going to do that, we should
discuss that. I hope Mr Barrett
and his committee and his government are willing to talk about how
we deal with the constitutional
issue and the jurisdictional issue.
I've got to admit I was very pro
marine heritage when we debated this bill. I don't even know how
to swim, and that's perhaps one
of the reasons I don't relate very much to you scuba divers.
Mr LeBourdais: There are a few people in the room who could teach you.
Mr Marchese: Since the flurry
of letters we got, we realize that the problem is bigger than I
obviously anticipated, and now
we've got a problem in terms of how to address the issues that all of
you seem to be raising with marine
heritage. I'm interested in doing that; obviously we're all
interested in doing that. How we
do that before we proceed toward passing the bill is, I hope,
something we can manage, but I'm
not sure how we're going to do it.
You were consulted on the amendments.
You supported the amendments by way of saying they've
gone a long way, but not entirely.
Mr LeBourdais: Yes, they
go a long way. They don't do everything. They're going in the right
direction, but there are still
some other things which will take some time to be resolved.
Mr Marchese: But you've never
sat together, yourselves with the archaeologists or heritage
people and the government people.
You've never done that, is that correct?
Mr LeBourdais: I haven't personally. When you say "you," I can't speak for other people.
Mr Marchese: I meant the organization, sorry.
Mrs Beth Cornwell: What we
have done so far is we have initially had meetings with a lot of the
people who are in the room here
now, but it was based at that time more on Bill 13 and what was
going to happen with it. Then in
the future we would like to move toward working together for a
consensus. But right now we haven't
actually sat down as a group and said, "OK, we're going to do
this and this." What we want to
do right now is make sure that the bill is fair and that, if it's passed,
it's passed with the stakeholders
consulted.
The Chair: Thank you, Mr
Marchese. I realize now if you'd only had a life preserver in 1995 and
1999, maybe things would have been
different.
Mr Marchese: You're too kind. They like me.
The Chair: I had no choice.
Thank you both. I'm grateful for
your offer and for the fact that you are an umbrella group that
represents many of the individuals
and organizations we have heard from, and will continue to hear
from.
Loath as I am to participate in
the debate, I would offer for the opinion of all those in attendance
the fact that if a federal election
is called and their House prorogues, those bills will all die. I think
that's something the committee
will want to take into account when dealing with whatever sense of
urgency the presenters have.
Mr Marchese: Does that mean
we don't get to proclaim the bill, given that it should pass in this
form, until the next election?
The Chair: I leave it up to the committee to decide.
Thank you both very much for coming before us here today.
Mr Levac: A point of information--
The Chair: Mr Levac, there's no such thing, but feel free to--
Mr Levac: A point of order,
Mr Chair, on information: Just so the members know, the same offer
was made by the group in the previous
presentation, that there was a meeting of the minds. Five
groups said they were getting together.
Just to be refreshed on that, I believe one person spoke on
behalf of five groups, and that
they said they'd let it out of the bag that they were going to be
meeting and making recommendations
and wanted to get together collectively. I would suggest
strongly that all of the groups
that are hearing this--it's not just one group that should be consulted;
it should be the entire community
that makes that offer. I put it out there as information, to let it be
known it isn't just one group that's
making that offer.
The Chair: There you go,
and you got your extra time there. Thank you, Mr Levac. We
appreciate that.
STEPHEN WEIR
The Chair: Our next presentation
will be from Mr Stephen Weir. Good afternoon and welcome to
the committee.
Mr Stephen Weir: Thanks very
much. Hopefully you all have one of these. I put this together last
night and it's in point form, just
in case I don't make it all the way through. I am a writer, a
journalist. I'm involved in a lot
of organizations. I've given you background on who I am. I make a
lot of my living from diving. For
the most part I write about shipwrecks for television and radio.
This bill has some concerns for
me because it affects not my hobby but my livelihood.
I'm very supportive of any move
by the government to bring in legislation that will protect our
shipwrecks. I wrote a book about
a shipwreck about 10 years ago, and most of the shipwreck was
in divers' garages and in their
rec rooms, so I feel a sense of urgency that we protect the
shipwrecks. I also recognize that
over the last 23 years since I've been diving, our shipwrecks are
under attack from a lot more serious
things than just divers. Zebra mussels are causing the wrecks
to implode. We are seeing wrecks
damaged because of fishing nets, oil dredging and prop wash
from tour boats. What divers do
is very small compared to what the rest of the world is doing to
our shipwrecks. I was part of a
team with the Canadian navy about two years ago doing some
deepwater exploration for wrecks
in Lake Erie. We found that even at a depth of 200 feet zebra
mussels or their morphed cousins
were covering the bottom. So it's difficult to know how long our
shipwrecks are going to be around.
Diver attitudes have changed since
I've been diving. I think our province leads the way in terms of
respect for the shipwrecks and
for the study of shipwrecks.
I've attached some clippings of
stories I've written for a variety of magazines and newspapers about
some of the things people in our
province are doing, and they're doing it without the support of the
government. Most of the shipwrecks
in the province are being found by sport divers. Most of the
research and publishing are being
by people like me and by TV shows and by concerned dive
groups. Very little research is
being done by the province. You don't have a boat; you don't have
divers. We're probably better equipped
and better skilled than anyone on the staff of the Ontario
government.
1640
I think that any move to put some
of the shipwrecks off limits is going to stifle research. It's going to
hurt us from exploring wrecks and
it's going to affect the dive industry.
As I mentioned at the outset, my
livelihood is threatened by this, although I can go to other
jurisdictions to find wrecks to
write about.
Specifically, the wording of the
bill causes me some trouble. You make reference in the bill to a
marine heritage site and there's
also reference to a debris field. Although I do a lot of my work in
the Great Lakes, I also do a lot
of work in rivers. Following the definition that I saw in the bill, it
could be to the point where I couldn't
even get into a river because the debris field could go from
one side of the river to the other.
As a writer, I tend to spend a lot
of my time not inside a wreck but outside a wreck. There are
shipwrecks that I'd like to see,
such as the Hamilton Scourge that I don't even want to go in. Yet
under the definitions that I see,
I'm not sure that I'm allowed to swim over it or beside it or stand 10
feet off of it and take pictures.
Maybe it's my lack of ability to read bills, but it seemed to be a
concern for me.
It also calls for a list to be given
of shipwrecks. I've tried to find out what shipwrecks are on the list
and I've not been able to.
Because I dive a lot in the Great
Lakes, I often come upon things that could be part of a shipwreck
or might not be. The bill calls
for me to report anything that I think might be a wreck. It's really
difficult to live with that part
of the bill because when you're under water it's really hard to tell what's
an artifact and what's garbage.
The act also calls for licensing
divers to visit certain wrecks. In the past, any time I've had any
dealings with the government marine
archaeologist, I've had such difficulty trying to get information
or anything close to a licence
that I just simply avoid it. We've been writing for 25 years and I think
the magazine that I write for has
probably written about more Ontario shipwrecks than anybody
else in the world. I guess I resent
the fact that I'd have to get a licence to continue what we've been
doing without the assistance of
the province.
In the past, the marine archaeologist
and the whole realm of shipwreck preservation within the
government have not been responsive.
As a journalist, I don't get phone calls returned, I don't get
the information that I need. I've
had unpleasant dealings with the ministry and I see that if this bill
goes into law, that's probably
going to get worse. I cite in here a few incidents where I have had
problems and I could go into those
later, if you'd like.
In conclusion, I would like to see
Bill 13 go ahead but I'd like to see it amended. We have a lot of
groups in the province--the Ontario
Underwater Council, the SOS, the Niagara Divers'
Association--that are way ahead
of the province in what they're doing in terms of wreck
conservation, wreck exploration,
publication, education. I'd hate to see us being shut out of the
process. We have had meetings,
but they've been without the participation of the government.
That is my presentation.
The Chair: Thank you, Mr
Weir. That leaves us a couple of minutes. This time the rotation starts
with the Liberals.
Mr Levac: Do you concur with
some of the comments made today, that federal Bill C-35 will
impact and this particular type
of legislation should be referred to the federal government?
Mr Weir: I don't have a comment. That's really out of my realm.
Mr Levac: Then I'll ask you a "what
if" question. If it is found that this type of legislation that we're
proposing, that's before us, is
federal jurisdiction, would you then lobby the federal government to
protect the same things that you're
trying to protect in your presentation today?
Mr Weir: Certainly, yes.
Mr Levac: So it's not so
much the legislation in itself; it's the idea that you're after, the type
of
protection that your group is after,
or you as an individual.
Mr Weir: As an individual,
I want to be able to continue what I'm doing. I'm in a sport where we
are probably the best people to
look after the shipwrecks. Whether it be federal or provincial law, I
feel threatened in what I do both
as a sport and as a livelihood.
Mr Levac: In any of your
TV programs or your articles that you've written, have you ever dealt
with the types of problems that
we're talking about today?
Mr Weir: Yes, although because
a lot of the things I do go for almost edu-entertainment--articles
and TV shows--the bulk, no. But
yes, in a number of TV shows we've looked at what's happening
in the shipwrecks. Certainly there
are other countries and other provinces that have more liberal
laws, but there are also places
I've dived that are more restrictive. It's something that's addressed,
yes.
The Chair: Thank you very
much, Mr Weir. We appreciate your taking the time to come before
us. I'm always struck by the thoroughness
with which many of these presentations are put together
and yours is certainly no exception.
JULIAN COLMAN
The Chair: Our next presentation will be from Julian Colman. Welcome to the committee.
Mr Julian Colman: First of
all, I'd like to compliment you on your desire and intent to preserve
the marine heritage of Ontario
and promote tourism. They are laudable objectives, to be certain. I
thank you for taking the time to
truly listen to the public on this issue. I hope that the consensus of
what you hear today will be reflected
in your ultimate actions.
You may have heard from many representatives
of the heritage and the diving communities. They've
given you their opinions and suggestions
in copious detail. As an individual heritage enthusiast and
scuba diver, I cannot hope to replicate
that detail, so I'm not going to do so today. I'd like to take a
step back for a moment and review
some of the key issues with you from a common sense
perspective rather than a technical
perspective, because I'm not a technician.
I understand that it is the primary
intent of this bill to reduce the amount of future damage to
shipwrecks so that all--divers
and historians--can enjoy them for many years to come. I heartily
support this principle but have
the following conundrums on the issue of protecting shipwrecks from
damage. The following may sound
a little bit simplistic but it's painfully obvious. Shipwrecks are, by
definition, already badly damaged
by collision, fire, sinking etc. It's fairly simple but obvious. Many
shipwrecks are subsequently salvaged,
resulting in substantial damage and destruction. Winds,
waves, currents, zebra mussels
and the natural process of degradation have and continue to do
damage, as do fishermen's anchors
and nets.
I also observe that there are 15,000
shipwrecks in the Great Lakes, with only 4,000 identified. The
average diver only knows of and
dives a limited number of these. To put this in perspective, the
impact on the marine heritage inventory
by the few divers who purposely damage or pilfer from
wrecks is very minimal.
Yet Bill 13, as presently envisaged,
targets scuba divers as the primary villains in the supposedly
wanton destruction of shipwrecks.
A variety of forces can cause the vast majority of damage.
Divers in reality have very little
impact, yet they are the prime targets of Bill 13. Does this make
common sense? I'll come back to
that in a moment.
Once again, we all want to preserve
our heritage. Heritage sites on land are protected from
vandalism or pilfering through
the imposition of criminal penalties. The public at large is permitted
to
visit all heritage sites, inside
and out, on land. Yet Bill 13 proposes, even with the amendments that
I've seen to date, to very severely
limit the rights of the public to visit the exterior and interior of
heritage sites that are underwater.
So we can visit sites above water, but not below. Does this
make common sense?
Let's get back to the issue of vandalism
and theft. We deal with vandalism and theft on public
property and heritage sites in
a very straightforward way: we pass laws that prohibit the above.
Anybody caught vandalizing or stealing
from crown property is prosecuted. This seems to be an
effective deterrent. Yet for heritage
sites that are below water, Bill 13 proposes that we take a very
different approach. It is suggested
that we should, rather, put a legal fence around all dive sites and
let the public through the gate
one at a time, after an arduous application process. And it's
proposed that a bureaucrat both
build the gates and keep the keys, without direction from or
accountability to stakeholders.
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By the way, the bill as it stands
now uses the term "enter" a heritage wreck, which is a very broad
word and can be used to bar law-abiding
divers from even being in the vicinity. The definition of a
heritage wreck is hugely encompassing.
So above water we prosecute vandals and thieves to deter
damage to historic sites, but below
water we prefer to label all law-abiding citizens as potential
criminals and lock them out. Does
this make common sense?
I know that the honourable MPP Barrett
has indicated that this is not the bill's intent. However, the
bill as presently written and amended
does just that. Moreover, I'm not so sure what the intent of
the bureaucracy is, as the province's
marine archaeologist is on record that in his opinion divers
disturb wrecks by their very presence.
In addition, MPP Barrett's office has stated that "any
wrecks containing significant artifacts
and new wrecks would be closed to diving."
By the way, my wife, who is not
a diver, observed, "Why would they want to keep divers away
from wrecks? The only people who
can see and enjoy these wrecks are divers. Isn't that strange?"
Wouldn't it be more effective to
simply strengthen the existing laws against vandalism or theft of
heritage property? Wouldn't it
be better to work harder on enforcement?
That leads me back to enforcement.
The enforcement of this act would be a very arduous and
expensive task. The OPP has a very
limited number of police divers and patrol boats. They simply
cannot enforce this act alone;
they'll need help. Moreover, help is available in the form of the very
law-abiding, heritage-conscious
divers this bill proposes to discourage.
Divers and dive charter boats can
and do informally police wrecks. They educate and exert peer
influence over their fellow divers.
The prevention of the removal of an anchor from the Ohio in Long
Point is a very good example. These
kinds of incidents are few and far between, b