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Marine Archaeology Legislation Project

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Marine Archaeology Legislation Project Marine Archaeology Legislation Project Commissioned by English Heritage School of Legal Studies 2 CONTENTS Project Team .................................................................................................................................... 3 Part 1: The Existing Legal Structure: Underwater Cultural Heritage ....................................................... 4 Introduction ..................................................................................................................................................... 5 The Salvage Regime ..................................................................................................................................... 6 Ambit of Salvage ........................................................................................................................................... 6 Danger in Salvage Law ................................................................................................................................. 7 Disposal of Historic Wreck ............................................................................................................................ 9 Salvage Awards ........................................................................................................................................... 10 Salvor in Possession & Derelict ................................................................................................................... 12 Statutory Restraints upon Salvage .............................................................................................................. 14 Protection of Wrecks Act 1973 .................................................................................................................... 15 Ancient Monuments & Archaeological Areas Act 1979 ............................................................................... 18 Protection of Military Remains Act 1986 ..................................................................................................... 22 Further Legal Provisions Relevant to Protection of the Underwater Cultural Heritage ............................... 29 European Convention on Human Rights .................................................................................................... 29 Valetta Convention ..................................................................................................................................... 34 Conclusion .................................................................................................................................................. 39 Part 2: Previous Proposals for Reform ................................................................................................... 41 Introduction ................................................................................................................................................. 42 Amending the International Convention on Salvage 1989 ......................................................................... 43 Utilising Discretionary Payments Under s.243 MSA 1995 in Respect of Unclaimed Historic Wreck ......... 46 Heritage Law at Sea ................................................................................................................................... 49 Interim Report on The Valletta Convention & Heritage Law at Sea ........................................................... 54 Previous Reform Proposals ....................................................................................................................... 61 Part 2: Annexe ......................................................................................................................................... 62 Annexe A : Draft Protocol to the Salvage Convention 1989 ..................................................................... 63 Annex B: Heritage Law at Sea .................................................................................................................. 66 Annex C: Interim Report on The Valletta Convention & Heritage Law at Sea .......................................... 84 Part 3: Reforming the Structure: An Outline of the Options .............................................................. 106 Introduction ............................................................................................................................................... 107 Law & Practice in Comparable Common Law Jurisdictions ...................................................................... 108 Preamble: Guiding Principles for Reform .................................................................................................. 127 Options for the Future ................................................................................................................................ 130 Option 1: Maintaining the Status Quo ...................................................................................................... 130 Option 2: Fine Tuning the Existing System: Limited Structural Reform .................................................... 131 Option 3: A New System Within Existing Jurisdiction ............................................................................... 137 Option 4: Changing Jurisdictions: New Scenarios ................................................................................... 175 Part 4: Review of Development Consent Procedures and the Marine Cultural Heritage ................... 179 Development Control Issues ....................................................................................................................... 180 Introductory Issues ...................................................................................................................................... 180 A : Planning and Development Consent Issues – General Concepts ........................................................ 182 B: Sectoral versus Planned Approaches to Offshore Development ......................................................... 189 C: Environmental issues to be considered in offshore developments ...................................................... 195 D - Protection of Marine Wildlife Habitats .................................................................................................... 205 E - Other Environmental Limitations ............................................................................................................ 209 F - Potential parallels to be drawn between environmental protection measures and potential utility for archaeology/cultural heritage protection ........................................................................................ 210 3 PROJECT TEAM Ms. A. Bowens Nautical Archaeology Society Dr. S. Droomgoole University of Leicester Dr. A. Firth Wessex Archaeology Dr. C. Forrest University of Queensland Mr. J. Lowther University of Wolverhampton Mr. C. Underwood (Project Officer) Nautical Archaeology Society Mr. M. Williams (Project Manager) University of Wolverhampton Mr. R. Yorke Joint Nautical Archaeology Policy Committee The Project Team are grateful to the members of the Joint Nautical Archaeology Policy Committee who, under the chairmanship of Mr. R. Yorke, kindly consented to act as a ‘sounding board’ for this project. 4 Marine Archaeology Legislation Project Part 1: The Existing Legal Structure: Underwater Cultural Heritage 5 Part 1: The Existing Structure Introduction This Part reviews in depth the genesis and the nature of the present legal framework relating to maritime archaeology in England and Wales. It also considers what advantages and difficulties have resulted from the United Kingdom's continued adherence to this structure. Annexed to this Part is a Report of a survey conducted by NAS Training of the experiences of stakeholders regarding the functioning of the designation and licensing processes under the Protection of Wrecks Act 1973. Two principal characteristics determine the legal structure for maritime archaeology in England. The first is the continued reliance on the law of salvage to govern the recovery of wreck from the sea, irrespective of its antiquity. Consequently, the corner stone of this structure is the law of salvage, with its associated legislation, principally the Merchant Shipping Act 1995, which incorporates the International Convention on Salvage 1989 into United Kingdom law. However, it has been recognised that the application of the law of salvage to archaeological material is not considered appropriate by many in the archaeological community, as this approach is contrary to the internationally recognised precautionary principle, which seeks as the first option to preserve the heritage in situ1. Consequently, a few statutory amendments to the salvage regime have been introduced to take account of the particular cultural nature of archaeological material, the desirability of preserving it in situ if possible and the importance, if recovery is necessary, of regulating that process so to preserve archaeologically significant information. However, these amendments are fairly limited in nature, being confined to limitations on the freedom to access wreck sites and initiate salvage operations. Otherwise, the rights and duties of the participants in the maritime archaeological process and the disposal of the recovered wreck material continue to be determined by the law of salvage. The second principal characteristic of the legal structure is the absence of a satisfactory mechanism for protecting archaeology which is
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