Vol. 151, No. 26 — December 27, 2017
SOR/2017-273 December 8, 2017
CANADA NATIONAL PARKS ACT
P.C. 2017-1519 December 8, 2017
Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 42(2) of the Canada National Parks Act (see footnote a), makes the annexed Order Amending the National Historic Sites of Canada Order.
Order Amending the National Historic Sites of Canada Order
1 (1) The portion of the schedule to the National Historic Sites of Canada Order (see footnote 1) under the heading “Arctic Ocean” is amended replacing the reference “Wrecks of HMS Erebus and HMS Terror National Historic Site of Canada comprising the following described area:” with the following:
Wrecks of HMS Erebus and HMS Terror National Historic Site of Canada comprising the following described areas:
(2) The portion of the schedule to the Order under the heading “Arctic Ocean” is amended by adding the following after the reference “That area containing approximately 83.6 km2.”:
In the Arctic Ocean; in Terror Bay; the area, consisting of the seabed and water column above the seabed, that is described as follows:
COMMENCING at a point at latitude 68°54′25.45″ N and longitude 98°59′42.07″ W;
THENCE easterly in a straight line to a point at latitude 68°54′25.24″ N and longitude 98°51′29.08″ W;
THENCE southerly in a straight line to a point at latitude 68°48′46.23″ N and longitude 98°51′31.25″ W;
THENCE westerly in a straight line to a point at latitude 68°48′46.44″ N and longitude 98°59′42.15″ W;
THENCE northerly in a straight line back to the point of commencement;
EXCEPTING all islands and foreshore lying above the ordinary low-water mark within the described area and all mines and minerals, whether solid, liquid or gaseous, that may be found within the described area.
That area containing approximately 57.8 km2.
Coming into Force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The discovery of the HMS Terror wreck necessitates that an amendment be made to the National Historic Sites of Canada Order (the Order) under the Canada National Parks Act (CNPA) to add the land description for the HMS Terror wreck to the Wrecks of HMS Erebus and HMS Terror National Historic Site in order to legally protect the wreck and surrounding seabed, the water column around the wreck, and any artifacts contained within the protected area. This would afford the wreck of HMS Terror the same legal protections under the CNPA as the wreck of HMS Erebus.
The CNPA provides for the listing of national historic sites under the National Historic Sites of Canada Order by setting apart land, the title to which is vested in Her Majesty in right of Canada, as a national historic site (NHS) of Canada in order to commemorate a historic event of national importance or preserve a historic landmark, or any object of historic, prehistoric or scientific interest, that is of national importance. Currently, 52 of the 171 national historic sites administered by Parks Canada are listed on the National Historic Sites of Canada Order.
In 1992, the wrecks of the Franklin Expedition, HMS Erebus and HMS Terror, were designated as a NHS by the Minister of the Environment under the Historic Sites and Monuments Act, despite neither wreck having been found at that time. Designation under the Historic Sites and Monuments Act does not extend any form of legal protection over the site and does not offer protection to either wreck. In 1997, a Memorandum of Understanding (MOU) was signed by Canada and the British Government acknowledging that Great Britain retains ownership of the wrecks, but assigning custody and control of their contents to Canada, and providing for the transfer of ownership to Canada of certain recovered artifacts. Under the terms of the MOU, Canada has the discretion to take any actions with respect to the wrecks of HMS Erebus and HMS Terror and their contents that it considers appropriate. On October 23, 2017, the Government of the United Kingdom announced its intent to gift the Franklin wrecks to Canada.
From 2008, several Parks Canada-led searches were undertaken for the Franklin Expedition wrecks. The discovery of the wreck of HMS Erebus was confirmed by Parks Canada in September 2014, and the location of the wreck of HMS Terror was confirmed by the Agency in September 2016. The discovery of both wrecks was made possible by Parks Canada’s partnerships with northern communities, the Kitikmeot Inuit Association, the Government of Nunavut, the Canadian Coast Guard, the Royal Canadian Navy, the Canadian Hydrographic Service, Environment and Climate Change Canada, and private and non-profit partners.
Following the discovery of the wreck of HMS Erebus, the site of the wreck was listed under the National Historic Sites of Canada Order. This established a new conservation area, the Wrecks of HMS Erebus and HMS Terror National Historic Site of Canada, and provided the wreck of HMS Erebus and its surrounding area with legal protection under the CNPA. While both wrecks are listed under the Order as part of the one NHS, the Order currently only includes the legal land description for the HMS Erebus wreck site.
The objective of this proposal is to legally protect HMS Terror and the surrounding sea bed and water column from unauthorized activities by including the land description of the wreck of HMS Terror under the National Historic Sites of Canada Order as part of the existing Wrecks of HMS Erebus and HMS Terror National Historic Site. This will extend to HMS Terror the protections afforded by the CNPA and allow Parks Canada to protect HMS Terror’s historic and cultural resources by preventing access to the site and applying the enforcement powers, offences, and penalties available under the Act.
The National Historic Sites of Canada Order is being amended, pursuant to subsection 42(2) of the CNPA, to add to the schedule the description of the area of seabed measuring 57.8 km2 that encompasses the wreck of HMS Terror. An area of this size is required to prevent access and activities directed at the wreck, and to protect underwater historical resources related to the wreck. The size of the area would protect any underwater debris and artifacts dispersed around the wreck, make it difficult for unauthorized individuals to approach the wreck, and facilitate monitoring of the site. The area being proposed, which consists of the seabed and the water column above the seabed, is federal Crown land and is not within navigational channels.
The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.
Small business lens
The small business lens does not apply to this proposal, as there are no costs on small business.
The Government of Nunavut is a major stakeholder that has been involved in the discovery and subsequent management of the wrecks of the Franklin Expedition. In 2012, the Government of Canada and the Government of Nunavut signed a MOU concerning the “Cooperation and Coordination for Research, Search, and Preservation Activities Pertaining to the Shipwrecks of HMS Erebus and HMS Terror and Associated Submerged Archaeological Resources.” The search for the Franklin wrecks and their management has been carried out in the spirit of building strong working relationships with the Government of Nunavut and the local communities.
As set out in the Nunavut Land Claim Agreement (1993), Nunavut Tunngavik Incorporated (NTI) is the legal representative of the Inuit of Nunavut for all matters relating to Indigenous treaty rights and negotiations. Listing the Wrecks of HMS Erebus and HMS Terror National Historic Site on the National Historic Sites of Canada Order in 2015 established a conservation area which triggered requirements under the Nunavut Land Claims Agreement to negotiate an Inuit Impact Benefit Agreement (IIBA). NTI delegated these responsibilities to the Kitikmeot Inuit Association (KIA) as the Designated Inuit Organization, imbuing them with the authority to negotiate on behalf of the beneficiaries of the Nunavut Land Claims Agreement. The KIA has been regularly consulted with, and provided input on matters relating to the discovery, management, and protection of both wrecks.
While conducting IIBA negotiations, the Franklin Interim Advisory Committee (FIAC) was established by Parks Canada and the KIA in order to facilitate cooperative management of the site through stakeholders, community members from Gjoa Haven and Cambridge Bay, the Nattilik Heritage Centre, the Government of Nunavut, Inuit Heritage Trust, and the Nunavut Tourism Industry Association.
Since its first meeting in June 2016, the Committee has provided Parks Canada with informed guidance on how to manage the Wrecks of HMS Erebus and HMS Terror National Historic Site. The FIAC provides guidance and advice on a wide range of management aspects, including the site’s future monitoring, interpretation and promotion techniques, engagement and collaboration initiatives with communities and stakeholders, service coordination, and incorporation of traditional Inuit knowledge (“Qaujimajatuqanit”) to inform decision-making. The Committee has met 13 times since its creation. Since the discovery of HMS Terror, ensuring the security of the site has been one of the Committee’s highest priorities. The FIAC agreed that amending the National Historic Sites of Canada Order to include the land description for the wreck of HMS Terror is the most effective way to ensure the site’s protection.
Through FIAC, local communities and stakeholders have been made aware of intentions to protect HMS Terror under the CNPA by adding its land description to the Wrecks of HMS Erebus and HMS Terror National Historic Site under the National Historic Sites of Canada Order. The KIA has agreed that the addition of the land description for the wreck does not need a second IIBA, and has expressed direct support for continuing with the negotiation of a single IIBA. The Hamlet of Gjoa Haven and the KIA have both expressed support for the swift protection of HMS Terror, in-line with the protections afforded to HMS Erebus. The Government of Nunavut, as part of the FIAC, has expressed support for the protection of the HMS Terror wreck under the CNPA.
As required by the Nunavut Planning and Project Assessment Act, which is a federal act, Parks Canada submitted the proposed protection of HMS Terror to the Nunavut Planning Commission. The Commission referred the proposal to the Nunavut Impact Review Board (NIRB), an institution of public government created under the Nunavut Land Claims Agreement, to assess the potential impacts of proposed development in the Nunavut Settlement Area prior to approval of the required project authorizations.
Using both traditional knowledge and recognized scientific methods, the NIRB assesses the potential biophysical and socio-economic impact of proposals and makes recommendations and decisions on which projects may proceed. Parks Canada’s proposal for the Order Amending the National Historic Sites of Canada Order was screened by the NIRB, and included a 45-day public comment period that ended August 18, 2017. One comment was received from the Government of Nunavut, requesting clarification on the terrestrial component of the initiative and the potential impacts to archaeological resources. Parks Canada confirmed that the area proposed for the historic site would not contain any terrestrial components.
The NIRB concluded its assessment on September 5, 2017, determining that the Order Amending the National Historic Sites of Canada Order is not likely to result in significant adverse environmental and social impacts, and that it will enhance protection of historical and cultural resources and support the commemorative integrity of the Wrecks of HMS Erebus and HMS Terror National Historic Site of Canada. These are regarded as important positive effects and no important negative environmental effects are expected to result from the Order Amending the National Historic Sites of Canada Order.
There are social and cultural benefits associated with this proposal, as inclusion of the HMS Terror land description under the National Historic Sites of Canada Order will afford it legal protection under the CNPA. The Order will extend the application of the Act to a limited and remote geographical area in northern Canada, and as such, will not have a direct or significant impact on the majority of Canadians’ way of life, culture, community, political systems, well-being, or personal or property rights. However, the story of John Franklin has captured the imagination of Canadians and the HMS Terror and HMS Erebus wrecks help paint a clearer picture of Canada’s rich history of Arctic exploration; there is therefore a cultural benefit to Canada from protecting this important national historical site.
Additionally, the tragedy of the Franklin Expedition echoes throughout Inuit oral history, and so the story of the expedition and the rescue attempts that followed are as much a part of Inuit history as they are a part of Canadian and British history. The preservation and legal protection of the sites of both wrecks therefore provide cultural benefits to Inuit communities, and allow the Government of Canada and Inuit to continue the implementation of the Nunavut Land Claims Agreement to ensure rights of Indigenous Peoples.
The legal protection will be provided through the application of the provisions of the CNPA. These include provisions relating to the designation of enforcement officers, enforcement powers, offences and penalties for contraventions. It will also allow the application to the site of the National Historic Parks General Regulations and the National Historic Parks Wildlife Regulations and Domestic Animals Regulations, which provide for the protection and management of ecological, natural, historical, and archaeological resources within the national historic site and allow the superintendent to control entry for the purposes of site management, protection, and preservation. The relevant penalties under the CNPA will now apply to offences related to the HMS Terror wreck site.
This proposal and its required assessments involve no additional costs to the Government of Canada. Any costs associated with the enforcement of the existing CNPA regulations by Parks Canada wardens will be covered by existing Parks Canada resources. In addition, as part of its education and outreach program, Parks Canada provides information to build awareness and encourage appropriate behaviour and compliance with the regulations, which is designed to minimize the need for enforcement actions.
Implementation, enforcement and service standards
The site will be administered by Parks Canada. Parks Canada will work with local communities and the KIA to fulfill obligations under the Nunavut Land Claims Agreement. Once the National Historic Sites of Canada Order is amended to add the land description for the wreck of the HMS Terror, park wardens, with the support of a number of Government of Canada partners including the RCMP, will enforce the Agency’s regulatory regime. A multi- partner monitoring program has been developed to monitor and protect the site of the HMS Terror. Current education and compliance programs will be used to implement the CNPA and regulations. Parks Canada staff has been trained in prevention methods and techniques that focus on visitor awareness and understanding to achieve voluntary compliance with the regulatory regime. An offence under the CNPA [see section 24(2)] by an individual is punishable by a fine of up to $100,000, whereas corporations can be fined up to $1,000,000.
In addition to this, Parks Canada, through its involvement with the FIAC, has been developing a guardian program that will be used to monitor the site of HMS Terror. The program will employ local community members to watch over Terror Bay and report any activities that may harm the HMS Terror wreck to the proper authorities.
Policy, Legislative and Cabinet Affairs Branch
Parks Canada Agency
30 Victoria Street, 4th Floor