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Endnotes

  1. James Adovasio, quoted in M.D. Lemonick, "Coming to America," Time, May 3, 1993, p. 55.

  2. Jacques Cinq–Mars, "Bluefish Cave 1," Canadian Journal of Archaeology, No. 3, 1979, p. 1.

  3. Notably the Canada Shipping Act.

  4. Federal Archaeological Heritage: Protection and Management, a report published by the Department of Communications in collaboration with the Depatrment of the Environment, the Department of Indian Affairs and the Department of Transport, 1988, p. 10.

  5. "We possess written records for only the most recent 400 years of the 12,000 year history of Canada's peoples.... The principal means we have to trace the settling of our country and to chronicle the lives of 600 generations is through the study and interpretation of their archaeological remains." Federal Archaeological Heritage, op. cit., p. 24.

  6. See The Canadian Environmental Assessment Act Reference Guide of Physical and Cultural Heritage Resources, Canadian Environmental Assessment Agency, April 1996, p. 2.

  7. Federal Archaeological Heritage, op. cit., p. 67.

  8. Federal Archaeological Heritage, op. cit., p. 27.

  9. Government of Canada Archaeological Heritage Policy Framework, Supply and Services Canada, 1990, P.1.

  10. The Convention on Laws and Customs of War on Land (Hague II), 1899, with its appended "Regulations Respecting the Laws and Customs of War on Land" (Hague II Regulations) at article 56. It banned "destruction...to historical monuments (and) works of art or science." In 1907, in a follow–up convention (Hague IV), that ban was extended to "wilful damage" (again at article 56). Offences against these conventions were part of the indictment (section 8) read against Nazi official Alfred Rosenberg at the Nuremberg Trials, for which he was ultimately hanged.

  11. For example, Federal Archaeological Heritage: Protection and Management was a report published by the Department of Communications in collaboration with the Department of the Environment, the Department of Indian Affairs and the Department of Transport, 1988. It proposed a "framework for archaeological resource management," comprising the goals cited in the text.

  12. Management of Archaeological Burials in Saskatchewan, Heritage Branch, Government of Saskatchewan, 1990. p. 12.

  13. The Canada Shipping Act applies to shipwrecks offshore or in navigable waters.

  14. Section 33.5.1 of the Agreement of the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada states: "The legislation and policy ... shall establish a permit system with respect to the protection, excavation and restoration, recording and reporting of archaeological sites. Appropriate sanctions against unauthorized disturbance of archaeological sites and specimens and unauthorized dealing in archaeological specimens shall be contained in appropriate legislation."

  15. An Archaeology Protected Resources List, January 21, 1991, p. 2. This report for the Department of Communications was prepared by the Bastion Group Heritage Consultants, Victoria.

  16. For "definitions" that cast no light on what is being defined, the consummate example is probably the one offered by the United Nations Educational, Scientific and Cultural Organization (UNESCO) which, in 1956 "defined" archaeological excavations as "research aimed at the discovery of objects of archaeological character." (Recommendations on International Principles Applicable to Archaeological Excavations, New Delhi, section 1).

  17. The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property refers, at article 1, to "objects of palaeontological interest, property relating to history...products of archaeological excavations...antiquities more than 100 years old...objects of ethnological interest." However, that definition is not very informative as to what these items are. Nor does the Cultural Property Export and Import Act cast much light on the definition, when it refers to items of interest under that legislation as "objects of any value that are of archaeological, prehistorical, historical, artistic or scientific interest and that have been recovered from the soil of Canada," section 4(2)(a). In fairness to those responsible for drafting such definitions, two points should be mentioned. First, international definitions are particularly difficult to draft, because of occasional differences of perspective between different countries. For example, in some countries archaeology is highly politicized, and this is reflected in controversies that extend into the very definition of the subject. Second, even in those areas which are uncontroversial, some countries make their definitions deliberately vague, on the supposition that since many of the most important discoveries were unanticipated, it is preferable not to categorize "important" discoveries in advance.

  18. Guidelines for the Management of Archaeological Resources in the Canadian Parks Service, 1993. p. 2.

  19. In Alberta, in order for an object to be considered an "archaeological resource," it must have been "buried or partially buried in land...or submerged" at one time or another (section 1). By that definition, the province's magnificent "medicine wheels" (large geometric formations of stones laid out for prehistoric ceremonies) would be excluded from the definition of "archaeological resources" (although medicine wheels might be designated for protection by the minister under another section of the Act).

  20. The federal legislation is inconclusive on whether archaeological objects must be in the ground to qualify. The Canadian Environmental Assessment Act does not define archaeology, and the Regulation under the Cultural Property Export and Import Act refers to objects "recovered from the soil" without specifying whether the object was on the soil or in it. On this point, provincial and territorial laws fall into four different categories:

    1. In the case of one province [Alberta section, 1(a)], the definition of an archaeological resource specifies that the item must have been in the ground or underwater.

    2. The laws of five governments specify that it can be either in or "on" the ground: Newfoundland and Labrador section 2(a), Prince Edward Island section 1(c), Nova Scotia section 8(1), Manitoba section 43(1) and Yukon section 60(1)(c).

    3. The laws of four governments do not specify whether archaeology must be "in" or "on" land, but which (by inference) treat the two indistinguishably: New Brunswick sections 1,7.1 (it refers to anywhere "in the Province"), Quebec article 35, Saskatchewan section 67, Northwest Territories section 3.

    4. Two provinces have laws that appear to extend not only to what is in or on the ground, but also to items higher up such as rock paintings or rock carvings. See British Columbia section 13(c). Ontario's law appears to lean in the same direction when it defines "property" (at section 47) as including rock carvings, although the wording is less clear.

  21. See endnote 17 above.

  22. Ibid.

  23. This is the practice in British Columbia. Although it is not named as such in the legislation, the identification and protection of culturally modified trees is required under several land claims agreements.

  24. Nova Scotia is the only province to have a treasure trove act; but even the holder of a licence under the N.S. Treasure Trove Act must obtain various forms of permission, report finds, etc.

  25. The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, article 1(e).

  26. Federal Archaeological Heritage: Protection and Management tended to focus on items recording human activity over 75 years old.

  27. At section 2 (see sidebar).

  28. Section 2 of the Canadian Cultural Property Export Control List, a regulation under the Cultural Property Export and Import Act, (C.R.C. 448) refers to thresholds of 75 years or 50 years in the same document. One expert report to the federal government suggested a simpler definition: an archaeological artifact would be "an object (or part of an object) that was made or used by humans and discarded, lost or abandoned for 50 years or more;" while an archaeological site was "land that contains an artifact, a burial...or any trace of human use...that is 50 years or older." An Archaeology Protected Resources List, by The Bastion Group. Department of Communications, 1991, p. 2.

  29. Newfoundland and Labrador section 2(b), Prince Edward Island section 1(c), Nova Scotia section 3(aa), New Brunswick section 1, Quebec article 1(f), Ontario section 1, Manitoba section 43(1), Saskatchewan section 2(d), Alberta section 1(a), Northwest Territories section 2, Yukon section 60(1)(b).

  30. See endnote 26 above.

  31. The Canadian Environmental Assessment Act refers specifically to palaeontology at section 2(a). The Regulation under the Cultural Property Export and Import Act describes palaeontological specimens, at section 3, as being "recovered from the soil of Canada, the territorial sea of Canada or the inland or other internal waters of Canada, as follows:

    1. a type fossil specimen of any value;

    2. fossil amber of any value;

    3. a vertebrate fossil specimen of a fair market value in Canada of more than $500;

    4. an invertebrate fossil specimen of a fair market value in Canada of more than $500;

    5. specimens in bulk weighing 11.25 kg (25 pounds) or more of vertebrate fossils or vertebrate trace fossils of any value; and

    6. specimens in bulk weighing 22.5 kg (50 pounds) or more, recovered from a specific outcrop, quarry or locality, that include one or more specimens of any value of the following, namely,
      1. invertebrate fossils,
      2. plant fossils, or
      3. fossiliferous rock containing plant fossils or invertebrate fossils."

  32. Some provincial laws refer specifically to palaeontological items (e.g., fossils, dinosaur bones, etc.) in the same legislation as archaeological legislation, and with the same legal consequences: Nova Scotia section 3(aa), Manitoba section 43(1), Saskatchewan sections 2(d), 2(i) and 67, Alberta sections 1(i), 29 and 30, Yukon section 60.

  33. In the laws of two provinces, the definitions are so loose that palaeontology could be considered to be covered by inference: British Columbia refers at section 1 merely to items of "heritage" interest, and Prince Edward Island refers at section 1(c) to items of "prehistorical significance."

  34. In the case of one province, Newfoundland and Labrador, at section 2(b), the law refers to palaeontology, but does not say that such discoveries or research are governed by the same kind of rules as archaeology. Instead, sites with palaeontological remains can be protected only under a separate kind of special ministerial order.

  35. These laws are totally silent about palaeontology: New Brunswick (no inference can be drawn from definitions at section 1), Ontario (likewise at section 1) and Northwest Territories (likewise at section 2).

  36. The Quebec Cultural Property Act definition is confined to items associated with humans: article 1(f).

  37. The Canadian Environmental Assessment Act Reference Guide of Physical and Cultural Heritage Resources, Canadian Environmental Assessment Agency, April 1996, p. 2.

  38. Federal Archaeological Heritage, op. cit., p. 11.

  39. The conventions cited here are above and beyond the treaties for the safeguarding of cultural property in time of armed conflict, such as those cited at footnote 1, and the Convention for the Protection of Cultural Property in the Event of Armed Conflict (ratified December 1998). They are also more specific to Canada's domestic situation than the general obligations in, say, the Geneva Conventions.

  40. For example, there are precise rules governing treatment of human remains (Management Directive 2.3.1), archaeological research permits (Management Directive 2.3.2), collection management (Management Directive 2.1.23), etc.

  41. Departmental Administrative Order and Directive (DAOD) #5037–1 specifies the procedures to be used by personnel of the Department of National Defence for the protection of archaeological resources. It essentially mirrors most of the provincial and territorial legislation, pertaining to archaeology, of the areas in which military lands are located.

  42. Management Directive 2.3.1 of the Parks Canada Agency, for example, foresees "protocols" with affected communities to avoid such prospects.

  43. For example, during the Ontario Heritage Policy Review. See Summary of Public Submissions: Heritage Giving Our Past a Future (1988), p. 124.

  44. The text references section 4(d) of the CEAA.

  45. The Canadian Environmental Assessment Act Reference Guide of Physical and Cultural Heritage Resources, op. cit., p. 10.

  46. Draft Archaeological Resources Impact Assessment and Management Guidelines for Western Canada (by a task group representing the archaeology services of the four western provinces), undated.

  47. "Archaeological Resource Impact Assessment in Western Canada," by Germann and Spurling. Impact Assessment Bulletin, Vol. 4, No. 1–2, p.75–97.

  48. Ibid.

  49. British Columbia (section 13), Alberta (section 26), Saskatchewan (section 67).

  50. Newfoundland and Labrador (sections 2, 8), Prince Edward Island (sections 1, 4), New Brunswick (section 7.1), Nova Scotia (section 8), Quebec (article 35), Ontario (section 48), Manitoba (section 53), Northwest Territories (section 3), Yukon (section 61).

  51. Ontario calls this permission a "licence" (section 48) unless it is to do excavations on lands specially designated by the minister responsible for culture, whereupon permission is called a "permit" (section 56). In New Brunswick, the terminology is the exact opposite: permission to work on specially designated lands is called a "permit" (section 3) while other exploration is called a "licence" (section 7.1).

  52. Guidelines for the Management of Archaeological Resources in the Canadian Parks Service, p. 5.

  53. Ibid.

  54. The report Federal Archaeological Heritage: Protection and Management (1988) called for reorganization of the environmental assessment and review process to make it "fully compatible with the need for information management quality control" in archaeology.

    It called on the creation of a process to "make the proponent accountable for ensuring that there are no adverse impacts" (pp 14 – 46). The report also called for the drafting of guidelines on how to handle impact assessments (p. 14).

  55. Furthermore, section 16 (1) states: "Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of...measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project."

  56. Inclusion List Regulations, Statutory Orders ... Regulations (Canada) # 94–637 (SOR/94– 637), October 7, 1994. The CEAA applies generally to "construction, operation, modification, decommissioning, abandonment or other undertaking in relation to a physical work," sections 2, 5(1).

  57. Exclusion List Regulations, SOR/94–639.

  58. Law List Regulations, SOR/94–636.

  59. Comprehensive Study List Regulations, SOR/94–638.

  60. During the 1980s, the most relevant federal document of general application to federal lands was the Federal Policy on Land Use and its associated guidelines. According to Federal Archaeological Heritage, this was intended "to identify and, as appropriate, protect through designation or acquisition, lands of particular value because of their heritage resources." There were also "associated guidelines" to the Treasury Board Administrative Policy Manual, dealing with archaeological values among the list of social factors to be taken into account. However, at the time, federal environmental assessment and review process guidelines "did not require that archaeological resources be considered when assessing the potential impact of federal projects." "Although the Federal Policy on Land Use and the Federal Land Management Principle recognized the importance of heritage resources, the guidelines are quite vague as to how these policies will be achieved" (p. 50).

  61. Section 182(b): "Every one who...improperly...interferes with...a dead human body or human remains, whether buried or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."

  62. Chapter II. 10, section K

  63. The OPP's operating manual, at section 260 of Part 10, calls for police notification of the Cemeteries Branch and of the archaeological services at the Ontario Ministry of Citizenship, Culture and Recreation.

  64. The Sureté du Québec receives its instructions on this subject in the form of directives from the Office of the Chief Coroner. At the time of writing, that Office was preparing a new draft operational manual which would specify the requirement to contact the archaeological services of the Ministère de la Culture once human remains had been identified as being archaeological in nature.

  65. RNC Policy and Procedure Manual, Part 3, chapter E.

  66. Section 260.4 of Part 10.

  67. Chapter II.10 section H.1.b.2.

  68. Management of Archaeological Burials in Saskatchewan (1990), p. 9.

  69. Op. cit. p. 10.

  70. Op. cit. p. 15.

  71. Op. cit., p. 5.

  72. In Newfoundland and Labrador, one must report "immediately" (section 10), in Quebec "without delay" (articles 40, 41), within 15 days in Saskatchewan (section 71) and "forthwith" in Manitoba (section 46) and Alberta (section 27).

  73. Newfoundland and Labrador (section 10), Prince Edward Island (section 4), Nova Scotia (section 12), Manitoba (sections 46, 51) Saskatchewan (section 67), Alberta (sections 29, 30), British Columbia (section 13), and Yukon (section 63). In the Northwest Territories, the relevant provision banning damage is (exceptionally) not in the Archaeological Sites Regulations, but rather at section 16 of the Territorial Land Use Regulations. In Quebec (article 41), the minister can issue an order suspending work when an archaeological find occurs. In Ontario, the minister can do likewise, but unlike Quebec, the statute imposes no obligation to report to the minister so that he/she can take action.

    The Ontario Heritage Act declares, at section 66(2), that all archaeological objects taken without the authority of a licence are seizable. Otherwise, that Act is silent about damage to sites. There are provisions concerning environmental assessments under the Ontario Environmental Assessment Act or for the possible withholding of draft plan approval under Policy 2.5.2 under the Planning Act, but these are effective only when the government already knows the site has "archaeological potential." In short, in the case of purely fortuitous discovery, Ontario's legislation compels neither reporting nor protection until the government (a) learns about it (somehow) and (b) designates it officially as a heritage site under Part VI of the Ontario Heritage Act.

  74. Territorial Land Use Regulations, section 10(a).

  75. Quebec Cultural Property Act, sections 40–41.

  76. Ontario Heritage Act, section 66(2).

  77. This is a longstanding Common Law rule going back to the case of Elwes v. Brigg Gas Co. (1886).

  78. Newfoundland and Labrador (section 11), Prince Edward Island (section 7), Manitoba (sections 44, 45), Saskatchewan (section 65, 66), Alberta (section 28), Yukon (section 65). Nova Scotia (section 11), and New Brunswick (section 6) turn finds over to their provincial museums. In British Columbia, a range of options exists.

  79. The N.W.T. Archaeological Sites Regulations, like the statutes of Quebec and Ontario, are silent on this point, but the NWT contains relatively little "private" land.

  80. Ontario Heritage Act, section 66(2).

  81. Elwes v. Brigg Gas Co. (1886).

  82. This definition, drawn from article 586 of the old Civil Code, is not reproduced in the new Civil Code, but is nonetheless still applicable according to the jurisprudence: Boivin c. Québec, [1997] Recueils de jurisprudence du Québec p. 1936.

  83. If the item is "of slight value or in a very deteriorated condition," it is deemed to have been abandoned, under article 934.