• Wednesday, January 17, 2018

Heritage shipwrecks: Canada Shipping Act vs. Heritage Conservation Act

By BCShippingNews 31 August 2016
By Tom Beasley, Bernard LLP

Heritage shipwreck law in British Columbia is like the Fraser River. Often muddy and with many stretches little explored. Most of the law on the rights and obligations over shipwrecks is based on 19th century statutes to address problems of salvage pirates. In Canada, there has been little interpretation of that law since we have few treasure shipwrecks.

Those treasure wrecks attract modern pirates armed with lawyers rather than muskets. Without modern statutes, the courts are forced to apply old statutes to modern problems.

This article reviews the framework for shipwreck law in Canada with the underlying proposition that new shipwrecks are within the jurisdiction of the federal government and ‘not new’ shipwrecks are within the jurisdiction of the provincial government. That proposition will be analyzed under the following questions:

  • What is “wreck” and what are the statutory obligations?
  • Who owns shipwrecks?
  • What are the other shipwreck interests and values?
  • How should a shipwreck be managed?

What is “wreck” and what are the statutory obligations?

In addition to the shipwreck itself, wreck includes:

  • flotsam: wreckage which floats when a ship sinks;
  • jetsam: parts of a ship or cargo which is cast overboard to lighten the load in time of distress and sinks or is washed ashore;
  • lagan: goods thrown into the sea with a line attached so that they may be found again; and
  • derelict: a vessel abandoned at sea.

Part 7 of the Canada Shipping Act 2001, S.Can. 2001, c. 26 (the “CSA”) sets out the federal regulatory regime for dealing with shipwrecks. Wreck is defined as: (a) jetsam, flotsam, lagan and derelict and any other thing that was part of or was on a vessel wrecked, stranded or in distress; and (b) aircraft wrecked in waters and anything that was part of or was on an aircraft wrecked, stranded or in distress in waters.

The Constitution Act, 1867, 30 & 31 Victoria c. 3 (UK) sets out the provincial and federal powers. In the context of wreck, in my opinion, the provincial governments have the power, under s. 92 (13), over ‘Property and Civil Rights’ and the federal government has the power, under s. 91 (10), over ‘Navigation and Shipping.’ After a wreck has been on the bottom for two years, it likely has lost any aspect of Navigation and Shipping — unless it remains a threat to navigation or shipping. After two years on the bottom, most wrecks will never be used as a ship again. In B.C., as in most provinces, the bottom lands in lakes and along the coast are owned by the province.

The CSA has its roots in a 19th century English statute. Part 7 of the current CSA sets out provisions concerning Wrecks, Salvage and Investigations into Shipping Casualties. Specifically, Part 7 sets out the duties and responsibilities of the Receiver of Wreck. There are five Regional Receivers of Wreck in Canada, who, historically, are from the Canadian Coast Guard.

Anyone who takes possession of wreck must bring it to the Receiver of Wreck as soon as possible. Failure to report or deliver the wreck, and take possession of the wreck, may result in a charge and fine. Upon delivery of the wreck, the Receiver of Wreck holds it, until the owner contacts the Receiver, for 90 days or for a shorter time if the value is under $5,000, storage costs exceed the value of the wreck or the wreck is perishable. The Receiver then pays salvage to the salvor.

Proceeds of the sale go to the Crown after payment of salvage payments, costs, fees and expenses.

Anyone who receives, takes possession, secretes, sells or offers to sell, the wreck without lawful authority, can be charged with a criminal offence under s. 415 of the Criminal Code.

Part 7 of the CSA and s. 415 of the Criminal Code are directed at salvage issues of the 19th century. The wreck, left unguarded, was open prey to salvors, some of whom were fairly unsavory. Strong remedies were necessary to protect shipwrecked property. In the 21st century, these powers are an arcane hangover and do not address the reality of historic shipwrecks.

As most boaters know, the marine environment is a destructive force for shipwreck artifacts. Wood, when taken out of the water, will fall apart quickly unless it undergoes significant and costly conservation, for example, the Mary Rose, Vasa. Left in the water, wood is often in an anaerobic neutral environment where it will remain for many years, for example, the Erebus. Similarly, metal artifacts will rust and corrode once exposed to air, again necessitating costly conservation. The message from all archaeologists and most of the diving community is to leave the artifacts in place and only raise them under permit and with a conservation plan in place.

Heritage Conservation Act

The provinces have the power to legislate over property and civil rights. In B.C., the Heritage Conservation Act, RSBC 1996, c. 187 (HCA) was amended in 1994, following many recommendations from the 1986 Project Pride Report of then junior MLA Kim Campbell, to protect all shipwrecks and airplanes where more than two years has passed since they washed ashore, crashed or were abandoned.

No person can damage or alter a heritage wreck or remove any heritage object from a heritage wreck without a permit from the provincial archaeologist. The premise of the HCA is to leave heritage objects intact and to analyze the proper intervention, if any. The HCA is a resource management act. It does not deal with ownership.

In my opinion, the CSA goes beyond the federal powers of navigation and shipping and intrudes into provincial powers. Wreck which has been on the bottom for even a short time and which is not a threat to navigation, falls under the property and civil rights power. That opinion has not been tested in court. Until it is, we are left with two conflicting statutes. The CSA encourages salvage and delivery to the Receiver of Wreck. In contrast, the HCA prohibits any disturbance of the wreck site.

The two-year wreck rule is unique. No other state protects a wreck which has been sunk for only two years. B.C. has been applauded by divers and archaeologists around the world for the simplicity and common-sense approach to shipwreck regulation.

There are lots of interests and values associated with a wreck site. The CSA only addresses the owners and salvors’ interests from a salvage value perspective. Indeed, some owners may want to leave the wreck intact without salvage. The site may have a negative value from pollution or may have more recreational or tourism value to the owner if left intact.

Who owns a shipwreck?

The CSA protects the site for the true owner but does not address whether the wreck needs to be salvaged or should be salvaged; or whether there are other interests in the wreck site.

The HCA purposely does not address the question, after all, it also deals with aboriginal sites.

The potential owners are varied and include:

  • the owners and their descendants of the cargo, hull and the possessions of the crew and passengers;
  • the insurance company who paid out on owners’ claims;
  • the owners of the bottom lands (generally, the province);
  • the salvors;
  • the provinces, if the site was abandoned; or
  • the federal state for warships.

At common law, the owners of the wreck lose the right to the wreck if they abandon it. However, abandonment requires a physical relinquishment and an intention to abandon. Mere passage of time is often not enough to show abandonment.

What are the other shipwreck interests and values?

In addition to ownership interests, other shipwreck interests and values include:

a) habitat for fish and marine life for biologists, fishers and scuba divers;
b) recreational tourism, for scuba divers — which, in B.C., has spawned a strong artificial reef community;
c) heritage and archaeological resource, for avocational and professional archaeologists;
d) salvage;
e) educational resource, as a biological and historic site; and
f) scientific study, on the interaction of the site with the marine environment, including biological and physical changes of the site.

How should a wreck site be managed?

Most archaeologists are not interested in ownership concepts (private interests), but rather the information and knowledge (public interests) to be gained from the wreck site.

Land use planners continually balance public and private interests. Buildings cannot be erected or torn down without a permit which balances the private land owner needs from the public needs. Most would be very upset if the Hotel Vancouver, a heritage building, was torn down. We would be similarly concerned if developers could bulldoze the famous Marpole First Nation’s site without study and a permit.

The HCA recognizes that this planning and analysis process should not stop simply because the site is underwater. It transfers the same land-based heritage consideration to underwater sites. The only difference is that underwater heritage sites are very broadly defined to all wrecks more than two years old.

In my opinion, the province has not only the power but is best placed to manage shipwreck resources. The federal government does not have the local infrastructure or knowledge. Indeed, proper shipwreck management should be driven by the region — the local stewards, but accounting for provincial or national values. What is important in Nova Scotia probably is not important in B.C.

The balance between the ownership interests related to Navigation and Shipping under the CSA and the public planning interests embodied in Property and Civil Rights under the HCA will not be challenged in court until there is a gold/treasure shipwreck found in B.C. That is unlikely but possible as there are rumours of gold on some Klondike era steamers and the potential of Asian and Spanish shipwrecks from the 18th century and earlier. In the meantime though, the HCA amendments have helped minimize artifact removal from B.C. shipwrecks; increased diver tourism and jobs for marine archaeologists in providing reports on shipwrecks in the path of wharf, dredging, pipeline and waterfront development projects.

In the field of shipwreck protection, B.C. has led the world in managing shipwreck resources underwater in the same manner as terrestrial resources — pause, study and consider all resource interests.

Tom Beasley is a an employment lawyer and an avocational underwater archaeologist at the maritime law firm of Bernard LLP and can be reached at beasley@bernardllp.ca.