Murky waters and a creaky law

[Kara Sundstrom]

Murky waters and a creaky law
Treasure Trove Act 'archaic', doesn’t protect historic shipwrecks, critics say
_{By BEVERLEY WARE South Shore Bureau
Tue. Oct 13 - 4:45 AM}

BRIDGEWATER — A large rock juts out of the dark, choppy waters off Prospect.

Inscribed on it is the date Nov. 24, 1814, and the name Fantome, the British warship that hit a rocky reef and sank there.

This spot, about 30 kilometres southwest of Halifax, has become the flashpoint for a turf war that reaches to the depths of the ocean floor.

The crew of the 18-gun naval brig survived, and for nearly 200 years, so has the mystique about what the sloop may have been carrying.

Because of that, archeologists and the treasure hunters who hire them to document Nova Scotia’s marine heritage are at loggerheads over how wrecks like the Fantome should be treated.

Nova Scotia is the only province to allow treasure hunting. Critics say the Treasure Trove Act should be abolished.

John Wesley Chisholm, a Halifax diver, has made more than 60 documentaries with his company, Arcadia Entertainment Inc., many of them ocean-related. One he did for National Geographic, called Wrecksploitation, looks at how governments and communities around the world deal with marine cultural heritage.

In an interview, Mr. Chisholm said Nova Scotia is far behind most American states, Cuba, Greece, the Caribbean, Europe and even Sri Lanka.

He likens the Treasure Trove Act to privateering, "and as you know, that’s been generally out of style for a while."

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He and Rob Rondeau, Canada’s only full-time marine archeologist, have written to the previous and current provincial governments asking them to kill the act.

But other shipwreck divers say the legislation is just fine, allowing Nova Scotians to see artifacts from their marine heritage that they otherwise would never see.

The province estimates there are about 10,000 shipwrecks around Nova Scotia, giving it one of the richest maritime histories in the world. But in terms of protecting that history, "Nova Scotia just needs to get with the times," Mr. Rondeau said.

"There’s very little marine archeological work being done in Nova Scotia because of treasure trove licences."

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WHAT HAPPENED TO FANTOME?

Here’s what has happened in the Fantome’s case.

Folklore has it the brig-sloop and her convoy were carrying silver, precious china and other mementoes stolen from the White House by British soldiers and sailors before they set the presidential mansion ablaze.

The province gave an American treasure-hunting company a licence to salvage what it finds. The archeological community was furious, and the British High Commission in Ottawa intervened, claiming the ship had sovereign immunity.

Maritime salvage is governed by the United Nation’s Convention on the Law of the Sea, which says a military shipwreck remains the property of its flag nation. The British government said it owned the navy vessel, which had been a French privateer vessel before it was captured, and should stay on the ocean floor.

The case has ended up before the Nova Scotia Supreme Court.

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"The (United Kingdom) government has not given permission for a U.S. salvage company to salvage the wreck of HMS Fantome," high commission spokeswoman Courtney Battistone said in an email interview.

"Under international law, HMS Fantome enjoys sovereign immunity as a Royal Navy warship. This means that no operations can be carried out without the permission of the U.K. government."

She said the British government has not refused permission for Sovereign Exploration Associates International to salvage the wreck because the Pennsylvania company hasn’t asked. Sovereign Exploration holds the treasure trove licence.

If the British government does get such a request, it will consider it in light of "archeological best practice" and input from government departments such as the Ministry of Defence.

Ms. Battistone said the province has assured Britain that it will not issue a heritage research permit without the British government’s permission.

Sovereign Exploration’s chief operating officer could not be reached for comment and his Cape Breton lawyer failed to return a number of phone calls requesting an interview.

This controversy happened, critics in the archeological community say, because of what they call an archaic piece of legislation that exists nowhere else.

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TO THE HUNTER GO THE SPOILS

The Treasure Trove Act allows private treasure hunters to take 90 per cent of the spoils from shipwrecks — anything "financially significant." Salvage companies give the remaining 10 per cent of what is not deemed treasure to the Nova Scotia Museum and the Maritime Museum of the Atlantic, with a report of their work.

But the act was written in 1954 to deal with prospectors hoping to find a hidden treasure on Oak Island. It has since been applied to shipwrecks. The archeological community says it should be thrown out and replaced with legislation that protects underwater archeology, just as archeological sites on land are protected.

"The legislation is being used for what it was not designed for," said Mr. Rondeau, who was hired by a treasure hunting company to document the wreck of the Auguste in Aspy Bay, Victoria County, in 2005 and 2006.

He said Nova Scotia does not give shipwrecks a high enough priority. He wants the province to hire a marine archeologist and to create Nova Scotia’s first marine park at the site of the Auguste.

[Kara Sundstrom]

ARCHAIC LEGISLATION

"It’s an archaic piece of legislation and needs to be abolished," he said of the act. "It’s bad legislation that’s impeding the protection and interpretation of Nova Scotia’s maritime culture history."

Darryl Kelman, president of the Nova Scotia Archaeology Society, said "from the society’s point of view, we’d prefer to see all archeological sites treated the same, whether they’re on land or under water."

"I think the water confuses the issue," said Mr. Chisholm, the Wrecksploitation filmmaker. "Imagine if a shipwreck were suspected to be lost in the Public Gardens. Would we farm out licences to treasure hunters to dig around until they found it, keep a 90 per cent profit and then leave us a 10 per cent fee?"

Underwater excavation work is profit-driven under the treasure trove licence scheme, he said, whereas the Special Places Protection Act ensures sites on land are protected.

Indeed, Robert Neyland, director of underwater archeology for the United States Naval History and Heritage Command, believes there is no treasure to be had from the Fantome site.

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"From our research at the Naval History and Heritage Command, Fantome was nowhere in the area where it could have obtained loot from the White House, if any ever existed."

He said naval documents make no mention of the vessel among the British fleet there.

Even if it did have anything valuable aboard, Mr. Neyland said it would belong to the British navy.

"The only reason I can think of for the story of loot on board to continue in circulation is that the treasure hunters are spinning the story in order to obtain investors for a recovery project. Any investors in this project would never see a profit."

According to Sovereign Exploration’s website, "the bulk of the Washington valuables, believed to have been aboard the Fantome herself and the lost ‘Plunder Ships,’ have never been recovered."

The website says the discovery of British military uniform buttons and U.S. coins suggests key artifacts from the War of 1812 are in the area.

As an archeologist, Mr. Kelman said his concern is that salvage firms don’t take the time to properly record the excavation, nor do they always use proper methods.

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"And they have the permission of the provincial government to do that."

With archeology on land, he said the province keeps "all the artifacts."

"Everything you find belongs to the people of Nova Scotia.

"We should be proud stewards to these wrecks. We should not just be selling them off."

Sovereign also holds the rights to HMS Tilbury, which sank off Louisbourg in 1757 with what the company claims is $25 million to $30 million worth of treasure aboard, and Le Chameau, a 600-tonne, 48-gun French merchant ship that sank off Kelpy Cove, south of Louisbourg, in 1725. All 316 people aboard died.

But shipwreck divers like Terry Dwyer say because of the act, divers are preserving what is left of these wrecks by recovering artifacts and providing documentation the province wouldn’t otherwise have.

Mr. Dwyer was president of Deep Star Exploration, which hired Mr. Rondeau to document work on the Auguste. While that company has gone out of business, he now has a company called Wreck Hunter Inc. and wrote a book on shipwrecks off Nova Scotia.

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TREASURE HUNTERS PLAY CONSERVATION ROLE

He said there is a place for private treasure hunting companies.

"Provincial and federal agencies are simply not interested in searching for shipwrecks," Mr. Dwyer said. "They do not have the infrastructure in place to support such endeavours and they do not have the budgets or funding to do so.

"If private shipwreck exploration companies do not search for and salvage shipwrecks, nobody else will. The shipwrecks, their artifacts and the treasure trove will be lost forever, never to be seen again by anyone."

A case in point is the Auguste, found by a private company in 1977 that later spent time and money working in partnership with Parks Canada.

Mr. Dwyer also said the 90-10 treasure split doesn’t fairly reflect what happens. The Nova Scotia Museum and Maritime Museum of the Atlantic decide what they consider to be treasure trove and get first pick for their 10 per cent share, he said.

Then all artifacts must be catalogued, recorded and conserved at the exploration company’s expense.

He said the Nova Scotia Museum and people of Nova Scotia have benefited from a number of salvage projects that have recovered thousands of artifacts, plus gold and silver coins, from wrecks such as the Auguste.

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Mr. Chisholm doesn’t agree. He said shipwrecks are not supervised in any meaningful way and recreational divers may take trinkets without realizing the impact of their actions in terms of Nova Scotia’s marine cultural heritage.

"Most provinces have an awareness campaign for divers . . . and some sort of amnesty for artifacts that have ended up out there in the community. We don’t."

Mr. Dwyer also argues that salvage companies are doing valuable work because shipwreck exploration is "a race against time since, as we speak, every shipwreck is being destroyed by the tremendous force of the ocean."

"The tides and the weather seasons all conspire to destroy a shipwreck."

An information package put out by Bob Ogilvie, manager of the province’s special places program, said currents and waves do break up wrecks, "but chances are that if a wreck is still recognizable after centuries in the water, it will last a few years yet."

He recommends divers record wreck locations for future archeology "rather than strip and destroy them."

The Natural Resources Department, which regulates minerals and Crown land, issues treasure trove licences. They are valid for up to five years, said a provincial government spokesman.

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To get the licence, the applicant must hire a marine archeologist, who submits a report to the Heritage Department on the work that is to be done."The problem you run into is typically the people who take out a treasure trove licence are not really interested in the heritage research permit side of things," said Mr. Rondeau.

The heritage research permits allow divers to study a wreck but not take any artifacts.

"It’s our job to enforce provincial laws, but the person who’s paying us to do that is out to make money," he said. "You can’t serve two masters."

Michael Noonan, a spokesman for the Tourism, Culture and Heritage Department, said applicants "must submit the fully conserved and catalogued artifacts they collect."

"It’s an attempt to ensure the province’s history is preserved for the benefit of all Nova Scotians."

Mr. Rondeau describes the Auguste as one of the most historically significant wrecks in Canada. The ship was filled with exiled French military officers, noblemen and families returning to France after the fall of New France in 1760. The ship ran aground in a violent storm. Only seven of the 121 crew and passengers survived.

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"It’s an important shipwreck and nothing is being done about it."

The province is aware of the criticism surrounding the act and is reviewing the legislation. The previous Tory government hired Blackstone Consulting Inc. of Toronto to review and gather input on the legislation. That report is finished and was handed to cabinet earlier this year, but the new provincial government refuses to release its recommendations, saying they are in draft form and have yet to be reviewed by the proper departments.

( bware@herald.ca)

http://thechronicleherald.ca/Front/1147381.html

[Kara Sundstrom]

This silver coin was recovered from the wreck of the Auguste, which sank almost 250 years ago in Aspy Bay, Cape Breton.

[Kara Sundstrom]

This French Gold Cross of St. Louis was recovered by diver Paul Fitzgerald from the Auguste shipwreck in Aspy Bay.