Parks Canada has been in a tug of war with the government of Nunavut about who controls artifacts from the sunken Sir John Franklin ships in Arctic waters — and so far Nunavut is winning.
Nunavut officials refused to issue archeological dive permits to Parks Canada unless the federal government agreed to give up the authority to retrieve whatever artifacts it wants from the ocean floor.
Parks Canada initially balked at the restriction, but relented after getting advice that defying the Nunavut government could get their divers arrested by the RCMP.
- Special Report: Searching for Franklin
- Every HMS Erebus artifact 'has a story to tell'
- New photos of HMS Erebus artifacts, but still no sign of HMS Terror
Now, the agency must seek prior permission from Nunavut's director of heritage before retrieving anything from HMS Terror, the remaining lost ship from Franklin's ill-fated 19th century Arctic expedition to find the Northwest Passage.
The awkward outcome is yet another headache for Parks Canada, which is delicately navigating competing claims to the Franklin wrecks and artifacts.
Other claimants include the Kitikmeot Inuit, who have a say in the fate of the artifacts under a land claims treaty, and the British, who have the right to cherry-pick any artifacts that are of "outstanding significance" to the Royal Navy.
A CBC News investigation uncovered the jurisdictional tensions behind the dazzling headlines of the discovery of the wreck of HMS Erebus in September 2014 and the continued search for HMS Terror.
The spat with Nunavut began last spring, when Parks Canada applied for a permit to send divers to both the wreck of HMS Erebus and, if found, the wreck of HMS Terror.
"During the permit application process for the spring 2015 ice dive on HMS Erebus, the government of Nunavut included a condition that denied Parks Canada the authorization to recover artifacts from the wreck site," says a briefing note for Leona Aglukkaq, who was then the environment minister.
"Parks Canada responded to the government of Nunavut that it could not accept the condition," says the briefing, which noted the "risk of being charged" under the Nunavut Act. "The Royal Canadian Mounted Police have the authority to lay a charge." The note, and related documents, were obtained by CBC News under the Access to Information Act.
Trumps permit regulations
The federal cabinet subsequently declared the HMS Erebus wreck and surrounding waters a national historic site, which decisively trumped Nunavut's permit regulations.
But the other lost Franklin ship, HMS Terror, posed a problem because the wreck is almost certainly outside the boundaries of the national historic site and is therefore under Nunavut's jurisdiction.
Nunavut's insistence that Parks Canada get prior permission before retrieving any object from the wreck of HMS Terror put the agency in a difficult position.
"The ability to recover artifacts is a critical requirement of the search operation," says the briefing note.
'Ice conditions are ... raising the risk of permanent loss of artifacts' - Environment minister's briefing note
There's a "likelihood that evidence for HMS Terror will be spread over a debris field.… ice conditions are unpredictable, and there are no guarantees that additional searches will be possible in the coming years, raising the risk of permanent loss of artifacts."
In the end, Parks Canada acceded to Nunavut's demands, and agreed last June to seek prior permission of Nunavut's director of heritage before its divers remove any HMS Terror artifacts they may come across. Parks Canada is again applying for an HMS Terror dive permit this year, and Nunavut spokesman Doug Stenton says the same conditions will apply.
Just how that awkward arrangement will work is unclear. "The approval process would be managed on a case by case basis once Parks Canada archeologists identify potential artifacts for recovery," agency spokeswoman Kassandra Daze says in an email.
Complicating the artifact dispute is the Nunavut Land Claim Agreement, which requires the federal government to negotiate what's called an Inuit Impact Benefits Agreement for any area that it declares a national historic site, in this case the location of the wreck of HMS Erebus.
Talks on the benefits agreement have begun. A Kitikmeot Inuit spokesman says ownership and control of Franklin artifacts is a priority because the Inuit want the objects to be displayed in local communities to enhance tourism. So far, all 55 objects retrieved from HMS Erebus remain in Ottawa for conservation, including the ship's bell.
Britain has claim
"We'll all be coming to a table with our legal opinions at some point and trying to finally establish the ownership," says Fred Pedersen, director of planning and communications for the Kitikmeot Inuit Association in Cambridge Bay, Nunavut.
The British government also has a stake, based on a 1997 memorandum of understanding signed with Canada before any elusive Franklin wreck objects were found. The agreement acknowledges Britain's ownership of the wrecks and their contents, but says that country will assign ownership to Canada of everything recovered from the wrecks.
But there are two key exceptions. Any gold found will not be given up by Britain (none has been discovered yet). And "any recovered artifacts identified by Britain as being of outstanding significance to the Royal Navy will be offered to Britain for display in an appropriate museum."
A spokesman for the British High Commission in Ottawa, Nathan Skolski, says that "at present no items have been returned to the U.K. nor has the U.K. sought to do so." He adds that there currently is "no protocol for determining ownership."
Daze confirms Britain has not assigned ownership of anything to Canada, 18 months after HMS Erebus was discovered.
She adds that Parks Canada's goal is to make the artifacts available for public display somewhere in Nunavut after a lengthy conservation process.
Since 2008, Parks Canada has spent about $1 million on its archeological dives for the Franklin wrecks.