Committee Transcript 2000-Oct-11 | Legislative Assembly of Ontario

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.

ONTARIO MARINE HERITAGE ACT, 1999 / LOI DE 1999 SUR LE PATRIMOINE MARIN DE L'ONTARIO

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.

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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.

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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.

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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.

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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, but the theft was effectively deterred by divers. The theft would not have been prevented if they, as honest divers, had not been allowed access to the site in the first place. Theft and vandalism do occur in the dead of night when no one is looking. The best way to prevent them is through public access and education, backed by strong laws and penalties.

All of these issues that we have discussed will prevent or preclude divers, tourists and residents from diving wrecks. It will place impossible operational constraints on dive charter operators and on dive training shops. It will be, as many have told you, the death knell of the diving industry in Ontario.

I know that we all, you and I, want to protect and add to our marine heritage. The diving community should be encouraged to research, explore and discover new wrecks. Divers have and are willing to spend time and money on these endeavours. They should not be discouraged.

This is not, as you have seen from the public response, a harmless bill. It is very well meaning in its intent and objectives, and I compliment you, but it is harmful in its language and its implementation.

I urge you to retract this bill. I would suggest that you then engage in a series of consultations and workshops with all stakeholders and the public to come up with a better and more effective solution that protects the interests of all concerned.

I thank you for your time and for your consideration.

The Chair: Thank you, Mr Colman. This time the questioning will start with Mr Marchese.

Mr Marchese: How much time do I have?

The Chair: You've got about three minutes.

Mr Marchese: Thank you, Mr Colman. You mentioned something about enforcement where you state, "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." You don't have to worry; they're not going to put any money into enforcement. You can do what you always did, so it's not going to be a problem.

Mr Colman: I question then why you're passing the act.

Mr Marchese: That's a good question he's about to ask you on the issue of enforcement, Toby. Sometimes we work together on these issues, but sometimes we do it alone, right?

On the last point you make about the whole notion of putting stakeholders together, do you really think that if we could put the stakeholders together we might come up with some workable solution, or do you think not?

Mr Colman: Most definitely. I think we have umbrella groups in place, both in the heritage realm and in the diving realm, that we can get together and we can talk about what some of our key objectives are and gain a consensus. I think most of us in the diving community, with the exception of a few people who are involved at the executive level of the odd organization like the OUC, have only learned about this bill as of late, and I really don't think that the public has been fully heard, or heard very much at all. I think that if we publicize this and have an open consultation and hearings, we'll achieve a consensus.

Mr Marchese: Julian, have you seen the amendments that Mr Barrett has put out?

Mr Colman: Actually I've seen two series of amendments. I saw the first, which was about three. I do traverse the Net and various discussions groups and I saw a set of about six or seven further amendments, a second set of amendments. Is that the set we're talking about?

Mr Barrett: This is the last witness.

Mr Colman: Yes. I just saw that on the Net. I penned those in in the act. I'm not a lawyer so you should perhaps be consulting with a maritime lawyer. I think you've had some representations from a lawyer today. I penned those in and they really do not in any way change the intent or the operation of the bill, and none of the issues I've brought forward now, or that I've heard today, is going to go away as a result of this bill.

The Chair: Thank you, Mr Colman. I appreciate your taking the time to make your presentation.

Somewhere in these hearings I hope someone would suggest to the scuba diving members on the committee what some good wrecks would be to go to look at. We've heard a lot of discussion about this. I for one would be interested.

I'm not going to enter into any kind of debate or discussion on the matter, but I have a copy of the letter that was the source of the disagreement between one of the presenters and Mr Barrett earlier. Without any prompting, the word to me very clearly looks like "meeting." I'm sorry the witness read that as something else. I think it's quite typical for any of us as members to end our letters with a signed acknowledgement, and something like thanking for the meeting is quite appropriate. I think there might have been some miscommunication there. It's regrettable.

NIAGARA DIVERS' ASSOCIATION

The Chair: Our next presentation will be from the Niagara Divers' Association, Barb Marshall. Good afternoon and welcome to the committee.

Mrs Barb Marshall: Thank you. Last summer I was asked to speak to a children's library group about diving in Lake Erie. I showed them a video of different Lake Erie wrecks, my dive gear and publications on diving and spoke to them about the wonders of diving on shipwrecks. I should have anticipated what was to come, because when I walked in the door they were making treasure chests. During an animated question and answer period, a small voice from the audience asked me, "Have you ever found any treasure when you were diving?" My answer to that child was, "Divers believe that our greatest treasure is being able to look at and photograph these wonderful and mysterious wrecks."

I'm Barb Marshall and I am past president of the Niagara Divers' Association. I'd like to thank you for the opportunity to speak to you today. I was president of NDA when news of Bill 13 became public and throughout the firestorm which accompanied its proposed introduction. I'm here today to represent the Niagara Divers' Association and, in a larger sense, all divers who would be affected by this proposed bill, not only Ontario divers but all divers who visit our waters.

As a bit of background, our club consists of just under 50 members, mostly from the Niagara region of Ontario, but our membership ranges from the US to north of Toronto, with one member from Ottawa.

We became more involved early and vocally. Back in November 1999, the first e-mail notices of the bill hit the Internet, with controversy building over the next two months. In early December, the club membership unanimously supported efforts to fight this bill. By the end of December, we had not only sent an e-mail protesting this bill to every MPP in the province, but had mailed Bill 13 information to over 1,000 Ontario divers, dive shops, clubs and operators in the province.

We were joined by another local club in early January and financially supported to send this information to over 600 US divers, dive shops, clubs and operators. We also produced a Bill 13 Website, which was continuously updated, and submitted information to various news groups over the Internet. We continue to be actively and formally opposed to this legislation.

Our club is active in shipwreck conservation, as well as in education of divers via not only example, but in learning forums such as our annual shipwrecks symposium, previously covered by Dave Mekker. As well, our club has taken the lead in a mooring project for eastern Lake Erie and has put in many hours and dollars toward sinking blocks and setting up mooring systems.

Our club and its members are firmly committed to the preservation of the marine environment and our heritage. Then why would such a group be so opposed to the passage of Bill 13 when it is purported to be an act to preserve Ontario's marine heritage and promote tourism by protecting heritage wrecks and artifacts? It's pretty simple, actually. We read it and started to explore its implications.

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What are just a few of these implications? (1) It gives the Ontario government the ownership and the authority to close any wreck site it sees fit. (2) It requires that wreck sites be reported to the government, and failure to do so can result in fines greater than serious criminal offenses. (3) It also allows for these fines if a diver visits a wreck site, along with seizure of property. (4) It requires a licence to dive listed heritage sites.

In very simple terms, what is the likely scenario if we pass this bill? Law-abiding divers and the charter operators, who in reality act as custodians of these wreck sites, will not visit these sites. Because law enforcement has virtually no ability to police these sites, it becomes much easier for those who would harm our wrecks to gain access.

No new shipwreck discoveries would be made, as there would be no incentive to explore, research, investigate or educate. Access would be denied and the main source of public education about our underwater heritage would be lost. No books would be written, no videos produced, no presentations made and no television shows aired.

The licence quoted in the bill is not an acceptable form of admission to a wreck site. As one who holds one of these licences, I can attest that it is a licence to conduct an archaeological survey, an extremely involved process. The requirements to obtain a licence include participation in a survey course, a detailed application and specific reporting, recording and documentation. This licence is issued to only one individual for a site, with option to renew for an additional year. This is the same licence referred to in Bill 13 and is not readily available to divers.

Let's take a look at the divers themselves and their reaction to this bill. Diving cuts through the whole spectrum of society. Divers come from every profession, education and geographic area. The one thing they share is their passion for diving and a keen spirit of adventure and independence. Their reaction will be swift and telling: they will make their feelings known by their absence.

Their absence will have a telling effect not only on the dive industry, but the local economies of current dive destinations-the dive shops, charter operators, hotels, restaurants and stores. I estimate that over this past dive season I have personally spent nearly $5,000 on diving. Multiply that by many thousands and you may have some idea of the potential impact of this legislation.

Do I want to dive in Ontario? Yes. Do I want to spend my money in Ontario? Yes. Will I go outside the province to indulge my passion? I will if I have to.

I am not alone. I will be spending my dollars in New York state, Michigan, the eastern United States, Quebec and Florida. Our legacy of Great Lakes shipwreck diving, in my belief the best in the world, will come to an end as far as the province of Ontario is concerned.

The solution is not in barring access, listing wrecks which divers may visit or declaring ownership of wreck sites. The confusion and ill feeling brought by this bill would be untenable. This bill is seen to punish the many for the sins of the few. The overwhelming majority of divers are law-abiding, responsible divers. The few who break the law will not be deterred, but the many will suffer.

The solution is to increase diver education, one that we have been working toward for the past few years and one that has proven itself effective. The change in diver attitude toward our underwater heritage has been both marked and profound. By example, by peer pressure and by diver forums the message has been spread that carelessness with our environment will not be tolerated and is no longer acceptable to the dive community.

Over the past 10 years, the most startling change has been in the attitudes of the old-time divers, the ones who started diving when the norm was to take souvenirs, and care with dive techniques and wreck sites was not regarded as a vital and essential skill.

I submit that we take this a step further and that it be stressed at every level of diver training, starting with the basic level and continuing through the advanced and technical levels. Training agencies, the dive community and even the charter operators need to drive home the necessity of care of our wrecks for the benefit of future generations.

No wreck site should be closed to the diving public. Public access must be guaranteed to all wrecks in Ontario waters. We are not asking for no rules to govern these sites. What we are asking for is legislation which does not restrict access, but which will allow for penalties for removal of artifacts and willful, intentional or frivolous damage to our wrecks and wreck sites. Put in place an effective law which would do this.

Bill 13 cannot be salvaged. The damage has been done and diver attitudes firmly entrenched. Bill 13 is now synonymous with the stripping away of divers' rights and freedoms. To be effective, marine heritage legislation must receive the buy-in of all stakeholders, and divers have the most at stake. I urge you to work with all stakeholders to come up with an effective and simple bill to accomplish this. The participation of the dive clubs, training agencies, shops, operators and organizations such as SOS, Preserve Our Wrecks Kingston, and the OUC is vital.

I cannot stress enough the importance of the participation of the dive clubs in this process. While the OUC includes divers as part of their membership base, the vast majority of divers in the province are not represented by the OUC. To this end, I would guarantee a representative in this process from the Niagara Divers' Association. We can provide the commitment, the network and a willing audience to help make this work. Let's use this opportunity to do the right thing and to do it the right way.

Last summer I told those children we were working to make sure our shipwrecks would be there for them to see. What do I go back and tell them next year?

The Chair: Thank you very much, Mrs Marshall. I'll bet you primed that in advance because you timed that perfectly.

Mrs Marshall: I did.

The Chair: Almost to the second. Excellent presentation. Thank you very much and congratulations on the good works you're doing down in your part of the province.

ADVANCED/TECH DIVING INSTRUCTION

The Chair: Our next presentation will be from Advanced/Tech Diving Instruction, Mr Ian Marshall.

Mr Ian Marshall: My wife is a hard act to follow. Before I start, I would just like to comment that Mr Barrett alluded to the fact that Bill C-35 is coming in the future, that it's out there somewhere. It has in fact gone through first reading. I wasn't sure if you were clear on that or not.

The Chair: Actually, first reading is simply tabling the bill. You do nothing more than read the title into the record. But it's at least a first reading. I just want to inform you that any time a government rises for an election, all bills die.

Mr Marshall: I have a handout of a couple of newspaper articles that I've clipped and some photographs as well.

I have been scuba diving since the mid-1960s. I got my first instructor rating in 1967, and in the 33 years since I have certified in excess of 3,000 students. In the 22 years I was part-owner and manager of a dive shop, most of those students were to the basic and advanced open water levels. Since then, through my company, Advanced/Tech Diving Instruction, almost all my instruction has been to the far more involved technical and trimix levels.

Although I enjoy and have experience in most types of diving, including everything from warm saltwater reef, cave, ice and even commercial, my passion has always been the freshwater shipwreck diving for which Ontario is famous.

For the last several years, technical diving has been the fastest-growing section of our sport. Technical diving requires a lot more dedication in all aspects, from time, training, number of dives performed, equipment, maintenance and, most importantly, money. To put this in perspective, the typical recreational diver requires a single tank and regulator system, wetsuit and a time-depth device. The technical diver will wear four to five tanks and regulator systems, one primary and two backup lights, redundant time-depth devices, and always the more expensive dry suit.

Over the last couple of days, I've called several of the local area dive shops to check on current pricing. I've been told that the average price to outfit a recreational diver for diving in Ontario waters is about $1,800 to $2,000, while the technical diver averages between $6,000 to $9,000 for his basic equipment. The recreational diver spends $5 for a tank of air, while the technical diver can spend $45 to $90 for the gas he needs to perform just one dive. These prices do not include things like underwater cameras or video systems that many of the tech divers carry. Between my wife and myself, we have an easy $45,000 to $50,000 tied up in equipment. When people invest that kind of money, they tend to use it and use it a lot.

A week ago last Saturday, we were diving the Cracker in 200 feet off Port Dover. Besides our group of six Canadians on board, there were two from New York, one from Pennsylvania and five who had made the 10-hour drive up from New Jersey.

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I guess the point I'm trying to make is that the only real reason we have to dive in this province is shipwrecks, and the only real reason we have to technical dive in this province is good-quality shipwrecks. If you restrict access to these shipwrecks, you are going to take at lot of money out of the economy. It's not just the charter boat fees but the gas, food, lodging and equipment sales that must be considered. I can easily invest $300 or more just on one overnight dive trip.

As far as my business is concerned, if you take away the better-quality wrecks, my prospective students have no incentive to dive or train here, and instead of drawing students into the province as I do now, local divers will be forced to go stateside instead. This would spell dire consequences for my business.

Mr Barrett's statement to the Kingston Whig-Standard that, "Most dive sites would be exempt from restrictions, especially if they have been stripped clean, or if they are not an ancient hull" is like telling a typical land tourist, "Come to beautiful Kingston. Although we have historic forts, buildings and museums, we are going to let you take a tour of the local landfill site instead."

When I posed the question to Mr Barrett's office, "Under the new Bill 13, will all shipwrecks be diveable or will some be restricted?" I received the following reply, "All commonly dived sites that are stripped of artifacts would continue to be open, but any sites that had significant artifacts remaining and all new sites would be closed." Well, I'll tell you, allowing divers to dive on a bunch of old boards is not going to promote tourism in any way.

Tobermory was for years given the title "Fresh Water Diving Capital of the World," but was experiencing a decline in numbers in recent years to areas such as Kingston, Leamington and Port Dover as more and more new sites opened in these areas. The sinking of one ship, the Niagara II, last year was a shot in the arm for Tobermory and the numbers started to climb back to what they were years ago. These new wrecks with artifacts are the things for which divers thrive, travel and spend money. Divers get into technical diving because the deeper wrecks are more protected by the environment and therefore more intact and have more artifacts to see. Restricting them in any way would kill the sport and related business in the province.

I've included a photo of some artifacts on the Munson, which is one of the most visited shipwrecks in the province over the last decade-coveted artifacts, great artifacts. Is this one of the shipwrecks that's going to be restricted?

I should point out that the brass number plate on the generator in the top picture was stolen Labour Day weekend last year, but because the site is popular and open to the public, we know it was someone from a group outside the province who were on the site in their own Zodiac inflatable boats. Divers on the charter boat immediately before had photographed the plate and it was gone when the boat immediately after arrived. When the same group visited Kingston last Labour Day, it was made quite clear to them that the removal of artifacts would not be tolerated and, more importantly, I don't think they were left alone long enough on a ship that they could have taken anything if they had wanted to. They were not left alone.

Likewise, it was the arrival of a charter boat that scared off a small boat attempting to remove an anchor from a Port Dover area wreck, which was mentioned a couple of talks ago. If the charter boat had not been there, that anchor would have been gone. They were also able to give the registration numbers to the authorities.

Could you imagine what would happen if these sites were restricted? If it were not for the charter boats and the preservation-conscious divers, who would protect these sites? In my area of the province, the local police, natural resources and customs are all sharing the same boats, just trying to keep up some presence in the lake while dealing with budgets and cutbacks. They certainly can't do it.

Kingston and Tobermory have sunk shipwrecks to attract diving tourists. Oshawa plans to sink a Canadian destroyer. Port Colborne was working on plans to sink the Canadiana. Those plans have now been quashed because the Ontario Ministry of Natural Resources is refusing to issue permits. The deal to obtain the Canadiana was very time-sensitive, and it now looks like her steam engine is being removed and is going to Sweden. The rest of her is being scrapped. Mr Doug Unsworth from the Ministry of Natural Resources, a regional lands specialist, explained, "We have received legal advice that warns us that the province could be held responsible for any accidents resulting from divers visiting the wreck. We are not approving any sinkings until we have investigated what our legal position is." I ask you, if the province is stopping the sinking of wrecks because of possible liability, what will their liability position be if they own the wrecks?

Bill 13 should be scrapped. I see nothing in it worth salvaging. If a future bill is considered, it must be done with all stakeholders taking part. Groups like the OUC and SOS are good, but in reality they represent a very small portion of the divers involved. Other preservation groups include POW, dive clubs and organizations such as the NDA and Shipwrecks Symposium, dive shops, charter operators and associations, as well as the 8 to 10 different training agencies. You should also consult the cities and townships that stand to lose from poor legislation. Had that been done, perhaps we would be here praising this bill instead of condemning it.

Any future bills must be kept simple, perhaps something along the lines of British Columbia's, where all wrecks over two years of age are considered protected-not owned, just protected. Heavy fines should be in place for anyone caught removing artifacts or intentionally damaging the wreck or protected site. For the newer ones, if they don't have the permission of the owner or the receiver of wrecks, there should be heavy fines in place as well.

Terminology is also very important. Mr. Barrett has stated numerous times that the removal of silt was meant to cover such things as dredging and not a diver's stray fin kick, yet in the current ongoing litigation between Gary Gentile and the province, that is exactly what the underwater archeologist for the province is claiming. Likewise, the term "to enter a heritage wreck" is being interpreted into "to enter the area of" which, depending on the day, seems to be anywhere from 100 meters to a mile away.

Above all, access to the shipwrecks must be guaranteed. What good is there to have a heritage site if the people of Ontario can't see it?

I'd just like to leave you with this question or thought. Can you imagine being a land tourist out in front of Fort George in Niagara-on-the-Lake? After listening to the tour guide describing the fort, the history and importance, he ends his talk with this comment: "Unfortunately, this has been declared an Ontario heritage site so we cannot allow you inside. If you would like to see what the inside is like, please take the ferry across to Fort Niagara on the US side".

The Chair: Thank you very much, Mr Marshall. I think your wife has a slight edge; you went slightly over your presentation. Thank you very much for a different perspective and for adding to our deliberations here today.

DONALD MACINTYRE

The Chair: Our next presentation is from Mr Donald Macintyre. Good afternoon, Mr Macintyre.

Mr Donald Macintyre: Good afternoon, Mr Chairman. I'll be very brief, because most of what I had planned to say was contingent on what others had said and it's already been said.

I think it bears repeating that Mr Barrett should get substantial credit for bringing this issue to the fore, leading to discussion. There seems to be consensus that some improvements and industry-wide consultations are necessary, but I think Mr Barrett deserves the pioneer status.

About the only other thing I want to say is a little aside to Mr Marchese. His earlier comment was that he wasn't really into diving. I have one piece of advice: that this, Mr Marchese, may be one of the very few thrills left to a man of your age.

If any of you have Maltese Canadians in your constituency, I'd be glad to talk to you after the conclusion of these remarks. I had the thrill once of discovering an historically significant shipwreck that was built by one Louis Schicluna. Schicluna was a great Canadian pioneer of Maltese origin who built about 150 ships, starting in the 1840s, around the Welland Canal area. There's only one remaining of his wrecks and that's the Sligo in Toronto harbour which is visited by divers. Mr Schicluna has received some local recognition from the Maltese community about his great contributions, but he was certainly, in my opinion, a great Canadian pioneer. He built 150 ships that were of an era when there were no transport trucks, very few rails, and he was made a big contribution to the opening up of the continent.

I have nothing else to say, unless there are questions.

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The Chair: Thank you. The questions in this round would start with the government benches.

Mr Barrett: Thank you. In fact, the last-

Mr Macintyre: Excuse me, Mr Barrett. I should mention that I am rather hard of hearing; I'm 78 years old.

Mr Barrett: Still diving.

Mr Macintyre: Still diving, yes.

Mr Barrett: Mr Macintrye, the last several presentations raised the issue of access and also ownership. There have been two rounds of amendments suggested for this legislation, the most recent round just in the last week or so, and through this consultation that will go on for a period of time there will be further amendments. One issue that was raised quite recently in the original draft of the bill itself about giving the Ontario government ownership-I just wanted to mention, if people weren't aware, that section has been deleted in my proposal.

Mr Macintyre: I noted that.

Mr Barrett: These are my amendments, the most recent amendments. Again, it was the issue of the concern on the part of government, and from my discussions and what I've been reading, their concern about liability. That may have been a factor. I think it's been mentioned today, the issue of the reluctance of MNR around the sinking of hulls and the concern that diving, no matter how old you are, still has a risk. There was a concern, I suppose, of government creating a risk and being held liable.

The BC legislation was mentioned and this approach, as I understand it, has been-

Mr Marchese: Time.

Mr Barrett: How much time do I have?

The Chair: About another 45 seconds.

Mr Barrett: My understanding is that in BC, under their heritage conservation act, the province does not feel they have ownership of these wrecks or the artifacts. However, we know from the Atlantic court case, yet another wreck off Long Point in Lake Erie, there was quite a battle there as to who owned it, California or Ontario.

Mr Macintyre: Mr Barrett, I'm unable to comment on that weighty legal subject.

The Chair: For the Liberals, Mr Levac. I think we may have some quick questions, about a minute and a half each.

Mr Levac: Mr Macintyre, just your best guess on this situation: the Ontario Heritage Act has been mentioned in previous presentations, maybe not today, but in the October 4th presentation, as possibly receiving amendments to take care of the concerns that are raised by Bill 13. Do you have any kind of comment or opinion on whether or not the Ontario Heritage Act could be amended? Do we necessarily need a Bill 13?

Mr MacIntrye: I don't have any particular expertise on that. I was impressed by the comments last week from, I believe, SOS and others to the effect that it deserved separate legislation. I was also impressed with the suggestions that whatever group is convened to study these questions should have a close look at the US federal legislation on historical artifacts in federal waters, and also the BC act and probably the Michigan act.

Mr Levac: To push just a little further then regarding your comment that Mr Barrett was a pioneer. I think around the table we've acknowledged that he's brought attention to the issue. Do you believe that the bill should be passed in its present form, even amended?

Mr Macintyre: I think I and most of the other presenters would rather see grassroots legislation.

Mr Levac: Thank you for that.

Mr Marchese: Mr Macintyre, I thank you for your advice. I also wanted to agree with you and suggest that Mr Barrett deserves a great deal of credit for introducing the bill because it introduced a debate that I think we all wanted to have and are having. I also wanted to tell you that this has really been very non-partisan, to the extent that there is no ideological kind of fight we're all having, and that's a good thing.

I'm hoping the government members will do what most of you have suggested, and that is, before we pass the bill, speak with a number of you who have the various interests and perspectives and come forth with suggestions that will bring forth the goodwill all of you seem to have. That's what I'm hoping will happen, because most of the amendments come from Mr Barrett. We haven't consulted on that, and you are our consultation group. I want to simply say to Mr Barrett that we're interested in making sure that the goodwill some of you have toward the preservation of marine heritage, but also addressing the interest you have as divers, is integrated in a bill we can all support.

The Chair: Thank you, Mr Macintyre. I'm sure Mr Marchese would get a thrill, particularly as a non-swimmer. It might be putting the cart before the horse, but we appreciate your presentation.

Mr Marchese: One can still have a thrill.

The Chair: Oh, you would have a thrill all right.

TECHNICAL DIVING INTERNATIONAL (CANADA)

The Chair: Our next presentation is from Technical Diving International. Mr Guérin, good afternoon.

Mr Michel Guérin: Just one point before I start, to let you know that the first eight pages include my credentials, information based on that. My thoughts start on page 9. That's what I will be reading.

To give you a little bit of background on my experience, I've been an instructor-trainer for technical diving agencies for many years. I've trained over 2,000 sport divers and I've had the privilege to work with Stephen Weir and other people to film shipwrecks around the world for an underwater television series. This is not my real life but what I want to spend my time on after working at the bank.

I'd like to start by saying that every sport diver and technical diver is well aware of the thrill of exploring the underwater world. In an earlier generation, pioneers such as Hans Haas and Captain Jacques Yves Cousteau inspired a wave of diving devotees. Today that mantle has passed to divers the likes of whom you see here today.

My dream of becoming an underwater explorer started when, as a little boy, I watched their films on television. This was in the 1960s and early 1970s, when diving as a hobby was in its infancy in Canada.

My first scuba diving experience in inner space occurred in 1975. Needless to say, I was hooked. However, after certifying and diving the same shipwrecks over and over during the early 1980s, I realized that if I could dive the deeper wrecks, the better chances I would have to discover shipwrecks in a better state of preservation. During this period, technical diving technology and trimix was not readily available, so the dives were made on air to depths approaching 200 feet. To break this barrier, technical diving agencies were created in the early 1990s to educate the potential technical divers in the use of specialized diving equipment and associated skills in a very safe way.

Technical diving is safe, it is fascinating and it gives greater rewards to lively human curiosity then any other venture we know, other than space travel. Since 1991 the diving public with an active interest in deeper diving and more advanced technical applications has been nurtured by the Star Trek syndrome: to go where no one has gone before; to discover new underwater sites and share this information for others to share in its beauty. We at TDI believe that knowledge and learning are best nurtured in an open forum of intellectual exchange.

Most technical divers are certified by environmentally conscious agencies such as TDI and IANTD. There are a whole bunch of them out there now. From these, technical divers have spawned underwater organizations such as the Cambrian Foundation in the United States and the MAREX group in Canada. These different groups are ready to help new technical divers explore our underwater heritage while promoting the conservation of these sites by the use of minimal impact diving and exchanging information on the methods to perform these explorations safely.

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As part of their code of ethics, TDI divers must agree to the following code of conduct, "The TDI instructor and diver recognizes that he or she has access to a new dimension and depth of underwater exploration, and strives to encourage and practise an awareness of conservation of the underwater environment at all times."

TDI teaches its students that with increased knowledge and exploration capability comes increased responsibility for our underwater heritage.

We are living in a technically advanced society. We must strive to take advantage of the new diving technologies while creating a spirit of respect and co-operation between the technical diving community and government organizations such as the Ministry of Citizenship, Culture and Recreation. Both parties can make a significant contribution to all Canadians by assisting in the documentation and conservation of our underwater resources, without restricting the rights of divers who wish to invest in the right training and the right diving equipment to discover and explore our underwater heritage.

Moving into the new millennium, evolution in diving technology will allow us to dive deeper, stay longer, give us more flexibility with less weight and bulk than the open-circuit equipment we've been using for the past 10 years. Rebreather technology with the proper training will take us where we will want to go safely. Furthermore, the use of closed-circuit rebreathers has been recognized around the world as the way to significantly reduce diver impact during any wreck penetration due to the lack of bubbles. There's some documentation which states that people had the right to explore the Britannic, which is the sister ship of the Titanic, in Greece, as long as they had a rebreather system to go in. These units are extremely efficient, allowing dive times greater than six hours. Some units can even go deeper than 300 feet.

Recently, this type of diving technology, usually accessible mainly to national defense and military groups, is now making its way in the technical diving arena. As an avid user of this technology, I would welcome the opportunity to help any marine heritage agencies to gather information on some of our great underwater resources.

Bill 13 in its current state is too restrictive and will not nurture a spirit of co-operation between the marine heritage agencies and the diving community. In fact, I would like this committee to think of what might have happened if our earlier underwater explorers and pioneers had not had the right to explore and discover some of the very wrecks the bill is trying to protect.

Instead of restricting a diver's freedom to discover and explore, this bill should be cancelled and a new bill should be drafted to encourage and celebrate our discoveries and explorations of our marine heritage.

In 1998 the NOAA, which is the National Oceanic and Atmospheric Administration in the States, and the US Navy worked in cooperation with technical divers, certified under the umbrella of TDI and IANTD, on a joint expedition to gather data and recover artifacts from the USS Monitor, sunk in 240 feet off the North Carolina coast.

The end result was a group of civilian-trained technical divers working next to government-trained hardhat divers. The ultimate goal was to preserve one of America's great shipwrecks. From this positive experience, an agreement is being drafted between the civilian group and the government agencies to allow them to work and dive off navy and NOAA ships for dozens of research projects around the globe. We should learn from this example of co-operation and strive to achieve similar agreements between the federal and provincial agencies and the technical diving agencies or progressive technical divers such as the MAREX group in Canada.

All shipwrecks in Canadian waters fall under the protection of the Canada Shipping Act. The Canada Shipping Act is under the jurisdiction of the Canadian Coast Guard receiver of wrecks. All technical divers trained under the TDI wreck diving course are made aware of the function and authority of the receiver of wrecks prior to being taught skills which will assist them in protecting our underwater heritage by minimizing or eliminating any impact to our underwater historical resources. They are also taught to respect our marine heritage, the expected code of conduct on or in these shipwrecks and the consequences of their actions if they remove or disturb artifacts on shipwrecks.

TDI feels that the best way to protect our marine heritage is by educating all divers on the importance to protect our marine heritage and instigate joint exploration programs similar to the one successfully implemented between the NOAA and the Cambrian Foundation to promote co-operation.

The Chair: Thank you very much, Mr Guérin. You've left us about two minutes for questioning. It will go to the Liberal Party.

Mr Levac: This question just popped into my head as you finished: is there any time when you would recommend that divers do not enter any shipwreck?

Mr Guérin: Where they should not go into any shipwrecks. That's a good question. A lot of this work is essentially being done between archaeologists, and we have to study what the potential restrictions are to preserve the area.

A lot of the techniques that you see for wreck penetration stems from a lot of people diving in caves, so their top antisilting techniques minimize the impact, not touching anything and so on and so forth. They've pushed this a step further with the technology that is coming now, which is the closed-circuit rebreather. If you put all of the technology and the skills together, I don't think there is any restriction unless there is a grave issue about safety at that point, if the wreck is unstable. But there are some practices and some skills to essentially identify if something is stable or not.

Mr Levac: Thank you. I didn't mean that to be an obstructionist kind of question. It was just something that popped into my head. I thought about that. For the second quick question I'll move away from that and move into the area you mentioned about the Canadian jurisdiction. Do you believe that C-35 is something we need to take a look at before we worry about what we're going to do here in Ontario?

Mr Guérin: One of the things I do for the community is I'm a searchmaster for the Canadian Coast Guard units. We know the Canada Shipping Act. As a technical diver, I've always been following the regiment around the receiver of shipwrecks. In fact, a lot of times I feel personally and professionally that where the authority is right now is the right one. If we're not sure, like the instance that happened with the Empress of Ireland, for example, when it became a heritage site-we wanted to go dive the shipwreck, so we came in contact with the receiver of wrecks and we asked for counsel at that point. We said, "What is the best procedure to go with this?" He said to us, "If you want to go, send us a letter in advance," because of all the controversy that was surrounding the Empress at that point. There was a salvage vessel on it. There was some issue because it was considered one of the greatest marine disasters in Canadian history as well at that point.

I personally feel that, from my upbringing and my experience, the receiver of wrecks in Bill C-35 is the cornerstone in the infrastructure for this. If we can essentially enhance it somehow, so be it. That's why I'm saying we should get the people who are the subject matter experts in these things, and I think a lot of the technical diving agencies as well. A lot of the wrecks that are coming into contention right now are the deep ones, the ones that have not been visited or salvaged. A lot of us are desirous of seeing something that's intact, take pictures, film it, show it to other people, promote it. Now it's kind of curtailing us big time.

The Chair: Thank you very much for taking the time to come and give us a presentation today. We appreciate your professional perspective.

JONATHAN MOORE

The Chair: Our final presentation this afternoon will be from Mr Jonathan Moore. Good afternoon and welcome to the committee.

Mr Jonathan Moore: I've got a brief that I'm going to be making some minor changes to through the course of my presentation. I'm grateful for this opportunity to speak on the Ontario Marine Heritage Act. I am a marine archaeologist based in Ottawa, but the roots of my archaeology and diving experience are in Kingston, Ontario. Throughout my professional career, which has taken me across Canada and overseas over the last eight years, I have had the opportunity and pleasure of working with and getting to know a full range of members of the diving community. I would have to say that the vast majority of any jurisdiction I've worked in has been heritage-preservation-minded.

News of the proposed Ontario Marine Heritage Act flashed across the Internet in late 1999 and caught most divers, myself included, by surprise. I therefore feel compelled to talk to you today on some of the sections of the act from the personal perspective of an active diver and practising marine archaeologist.

I'm going to be taking a decidedly non-legalistic point of view and speak to the spirit of some of the act's provisions. In framing my submission for the committee and considering the merits of the act, I have worked from the following two premises: (1) that marine heritage sites are public resources which possess and present multiple benefits to different user groups, and (2) that in theory marine heritage sites should be accorded the same consideration for protection, interpretation, funding and promotion as historic buildings and sites, archaeological sites and even parks situated on dry land.

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With the general adoption of the preservation ethic by the dive community in Ontario over the last 20 years or so, deliberate damage to wrecks and artifact theft has diminished. But they still occur, and it is for this reason that section 4, in particular, of the act is warranted. Despite the best efforts of the marine heritage preservation organization, Preserve Our Wrecks Kingston, which I've worked with on and off for a number of years, artifacts continue to trickle away from the Kingston-area wrecks every year.

The proposed prohibitions should serve as a key element of strengthening the hand of marine heritage preservation in those very rare cases of intentional vandalism, theft, damage, unauthorized excavation or looting by anyone, whether or not they are a diver. That said, I don't believe that the intent of this act should be to restrict unduly access to sites. Nor do I believe it should be applied to punish unintentional damage to wreck sites, some of which is the result of lack of dive experience and buoyancy skills by divers. I think these are problems which are best corrected by further training and the perfection of low-impact diving techniques.

Despite the advances made in the preservation ethic, there are some systemic problems which have not been corrected adequately over the last 20 years. Management deficiencies often come to light, for example, with the discovery of new sites and the way in which, in some cases, they are opened to the general diving community.

Last month in Kingston the George T Davie, a barge sunk in 1945, was relocated and hastily opened up with little forward planning or thought for the site. A fundamental dilemma that resource managers face is that there is little incentive for an individual to disclose the location of a site, especially those well-preserved sites with numerous associated artifacts, whose location he or she may have been guarding. There is the fear that if the cat gets out of the bag, so to speak, there will be no way of stopping a free-for-all rush by divers to the site.

This is a question which goes to the heart of sections 5 and 6 of the proposed act. As it stands today, many divers are reluctant to report sites to the ministry. My feeling is that some would still hesitate to disclose the location of sites, especially given the minister's reporting obligations under section 5, notwithstanding the offence outlined in section 7. Publishing a record of marine sites which had previously been kept secret would be totally counterproductive to the aims of site protection. The reporting obligation, in my view, would meet with only limited success.

When examining the preservation of marine heritage sites, we should not consider legislation in isolation. Rather, we should also look at the wider picture of how marine heritage sites are managed for the benefit of the public, something this act does not address. I think it is fair to say that the stewardship and management of the hundreds of known sites in Ontario is largely fragmentary and varies in its quality and application across the province. I think, as an aside, in large measure the quality of marine heritage preservation depends on the activities of volunteer sport divers. I think this problem needs to be corrected.

We should also look seriously at the level of resources and programs the provincial government devotes to marine heritage preservation versus the amount of time and money donated by volunteers. When speaking of volunteers, I can think of no better example than Ken Mullings-some of you in the audience may know Ken-who has devoted over 10 years' worth of summers and weekends maintaining mooring sites and maintaining access to sites in the Kingston area.

It is my suspicion that public funding devoted to visitor services, archaeology, heritage interpretation, monitoring, promotion and indeed law enforcement at marine heritage sites is disproportionately low, given the heritage and economic benefits they generate. This is a question that I believe warrants exploration by this government if it has not already done so. I for one would like to know whether underwater heritage sites are getting a fair deal compared with their dry land cousins.

Prohibitions and deterrents laid down by legislation are not a panacea, but they are in my opinion an important and necessary part of marine heritage preservation. Legislation is appropriate to deter and punish the type of person or persons who last summer took the maker's plate from the generator on the dredge Munson, which has been referred to by Mr Marshall.

In future the cornerstone of marine heritage preservation will be diver education and responsible behaviour on the part of all those who interact with underwater heritage sites, whether or not they are divers. In the final analysis, it is up to all interested parties to co-operate and provide the best possible policy, planning and management for these fragile and non-renewable resources.

I think the next step forward for the Ontario Marine Heritage Act is to bring together all possible stakeholders, including archaeologists, to frame the desired and appropriate legislation.

I would like to say to Mr Marchese that when I started diving 12 years, I could barely swim, so there's hope for all of us.

The Chair: Thank you very much. I'm going to allow Mr Marchese a very quick question.

Mr Marchese: What do you mean? He only spoke seven minutes or so.

The Chair: You must have a different watch than I do, Mr Marchese. He started at 5:41, so you've got about a minute and a half.

Mr Marchese: Mr Moore, thanks for your presentation. It's very reasonable. In fact, I found most of the presentations very reasonable.

Mr Moore: So did I.

Mr Marchese: On your point, "I for one would like to know whether underwater heritage sites are getting a fair deal compared with their dry land cousins," they're not.

In terms of your other point, "We should also look seriously at the level of resources and programs the provincial government devotes to marine heritage preservation," they're not spending a cent that I'm aware of. Maybe they're spending a couple of bucks, but this ministry is the least valued of all the ministries we've got. When it comes to heritage, we don't value it and we don't defend it very well or very strongly and we don't spend much money at it. It would be nice if you had an opportunity to disagree with me. That's the kind of reality we've got.

You've raised other questions that I wish we had time to talk about because they're important questions in terms of how we value our heritage.

With respect to this bill, do you think we can fix the bill or do you think we need to go back to the drawing board and start all over? What is your sense?

Mr Moore: Speaking as an archaeologist who would have had a lot to say about this act, I think there are some things in it that are valuable. I think it has to be rebuilt, personally.

Mr Marchese: But we can solve it, is your point.

Mr Moore: As you said, there is not an ideological problem here. It's a matter of what is the best way to manage the resource, and legislation is an important part of management and stewardship and so forth. It's framing the best possible legislation to meet the desired ends that is what's needed.

Mr Marchese: When did you start swimming, again?

Mr Moore: About five minutes before the open water test for my scuba dive.

Mr Marchese: I'm learning, by the way.

The Chair: Thank you, Mr Marchese, for an interesting perspective from a former minister of this ministry. Thank you, Mr Moore, for that presentation.

Mr Marchese: Through me they got more money.

The Chair: Good try.

Thank you to all the presenters. We've certainly had two very informative days, giving the committee members and Mr Barrett much to think about. Particularly those who have come longer distances, I very much appreciate your coming down for a private member's bill and being part of the process.

This committee stands adjourned until next Monday at 3:30, for the purpose of considering Bill 112.

The committee adjourned at 1748.