Abstract

Archaeology provides Canada with its glimpses of the first 20,000 years of the human occupation of this country.

The analysis of items left by previous generations, in the soil or underwater, is often the only way modern Canadians can understand how over 700 generations lived both before and after contact between Europeans and First Nations. Sometimes, items that would look insignificant to most people today actually contain clues which, to a trained archaeologist, are like an open book. In certain crucial respects, the soil of Canada is itself a kind of archive of our collective past.

That is why it is so important for archaeologists to be notified and involved whenever the land is about to be disturbed by a major project. It also explains why, when the soil gives up its secrets accidentally (revealing artifacts or, more dramatically, human remains), this represents a remarkable and precious opportunity to learn about the past. The context - like the position of artifacts in relation to one another - can also offer clues which are as essential to an archaeological investigation as a crime scene is to a police investigation. That is why it is the policy of Canada, and of all the provinces and territories, to take maximum advantage of such opportunities.

But safeguarding such opportunities is not just a matter of policy. It is also the law. In the following report, the focus will be on laws affecting archaeology on land (as opposed to shipwrecks, which are handled by separate legislation). Those laws change from place to place - not only because they differ from one province or territory to another, but also because the rules for federal lands are different from those elsewhere. Provincial and territorial laws have wide application, since matters pertaining to " property" are primarily under provincial jurisdiction according to the Constitution. The government of each province and territory, without exception, has enacted rules specifically targeting the legal protection of archaeological resources. These provincial and territorial laws apply to most lands. Federal laws apply on lands under federal jurisdiction (national parks, lands belonging to federal departments such as National Defence or Agriculture and Agri-Food, land where a federally regulated development project is proposed, etc.). Although federal laws are not as precise as provincial and territorial ones, it is also the policy of the federal government to protect Canada's archaeological heritage. For that matter, these various laws usually say essentially the same thing. For example, they are reasonably consistent in how they define the subject matter.

  • According to law, protected archaeological resources include all evidence of human occupation that comes out of the ground (or underwater). (The only exception is in Nova Scotia, where buried treasure is not defined as " archaeology" but is subject to similar reporting requirements.)

  • Everywhere but in Alberta, the law applies not only to such items in the ground, but on the ground (or even above the ground in Ontario and British Columbia, for old carvings in rock or trees).

  • Under federal law, and in most provinces and territories (explicitly in Alberta, Saskatchewan, Manitoba, Nova Scotia, Newfoundland and Labrador, and Yukon; implicitly in British Columbia and Prince Edward Island), the law also protects palaeontology (the remains of prehistoric animals and plants); this includes everything from dinosaurs and mammoths to extinct ferns. (The legal status of palaeontology is less clear in Ontario, New Brunswick and the Northwest Territories; it is specifically excluded in Quebec's law.)

These laws are also consistent in calling on Canadians to think ahead, and to be conscientious about what may turn up. Everywhere in Canada, there is a formal obligation for governments and various members of the private sector:

  • to plan for archaeology and

  • to protect archaeological resources (regardless of whether they are discovered as part of a conscious research effort or by accident).

Those obligations arise from:

  • international treaties,
  • federal policy and statutes, and
  • provincial/territorial statutes.

The laws are only slightly less homogeneous when they describe the conditions necessary to allow individuals to do their own archaeological research.

  • According to the law of the three westernmost provinces (Saskatchewan, Alberta and British Columbia), archaeological exploration requires a permit (from the competent provincial/territorial authority) if it will disturb the soil.

  • Under the laws of the other provinces and territories, all archaeological exploration must be authorized, whether it " disturbs the soil" or not. That includes people scanning the land visually or with various kinds of equipment.

  • On federal lands, there is no single statute specifically on this point. Some federal bodies, such as the Parks Canada Agency and the Department of National Defence, have specific rules governing research; others do not, and it is then up to individual federal managers to decide, based on general federal policy.

Not surprisingly, every provincial and territorial government has an established format for permit applications and the filing of reports for authorized archaeological research. These are obligatory. Authorization depends, in part, on the archaeologist showing credentials acceptable to that province or territory. Some federal bodies, such as the Parks Canada Agency and the Department of National Defence, have rules that are similarly precise regarding permits and reports.

A careful identification of affected groups (e.g., descendants or other culturally affiliated people) and consultation with them should precede any research. Results must be communicated to the licensing authorities. On federal lands, it is recommended (although it is not mandatory) that a summary be sent to the director of the Archaeological Services Branch of the Parks Canada Agency.

In many respects, the laws governing archaeology are very similar to the laws governing environmental impact assessment. That is no coincidence. Often, the rules pertaining to archaeology and to the environment generally have the same source. In fact, at the federal level, they are both rooted in the same statute. Legally, a project that would prompt an environmental assessment (under the Canadian Environmental Assessment Act) also triggers a requirement to research archaeology and palaeontology. Elsewhere, although the statutes are different, a similar approach typically applies under the legislation of provinces and territories.

The laws are clear about what to do in the event of accidental discoveries. This applies to the discovery of artifacts, and particularly to the discovery of human remains. (Rules for the latter are extremely important, because it may not be clear at the time whether this is the discovery of an archaeological site or of a crime scene.)

The provincial and territorial laws are unanimous in stating that a discovery (whether of human remains or not) as part of an archaeological research project, under permit, must be reported by the archaeologist to the relevant provincial or territorial authorities.

In the event of the accidental discovery of human remains, the law specifies that one must:

  • halt activities,
  • secure the area and
  • call the police.

The police will determine whether the site is a possible crime scene, or whether it is " archaeological," whereupon they will contact the relevant authorities accordingly. It is recommended (although it is not mandatory) that if human remains or archaeological objects are discovered, the archaeologist should consult with nearby populations who are most likely to be descended from the people whose remains or property have been revealed. The laws are less explicit in defining what to do in the event of a discovery of artifacts not involving human remains. Ideally,

  1. all work that could potentially threaten the site should be halted,
  2. the site should be secured and
  3. the responsible provincial/territorial archaeological official should be notified.

In principle, these measures are intended to protect not only the artifacts, but also the site since, as in the case of a crime scene, many of the most valuable clues are in the location of the various objects. However, the statutes are not as clear in this area as they are in the case of human remains.

  • Concerning (a) and (b), all provinces and territories except Ontario insist that the site be protected automatically, and make it an offence to disturb the site of an archaeological find. (In Ontario, the provincial minister responsible for heritage must officially designate the site for protection first.)

  • Concerning (c), half the provincial statutes include a similar requirement to report finds (in Newfoundland and Labrador, Quebec, Manitoba, Saskatchewan and Alberta), although the laws of the other provinces and of the territories are silent on that point.

And who owns the find?

  • In all provinces and territories except Ontario and Quebec, discovered artifacts belong to the provincial/territorial Crown or its agents.

  • The Ontario Heritage Act says that artifacts held without a licence are seizable, but not to whom they belong. The Common Law, however, says that they usually belong to the landowner.

  • In Quebec, finds belong to the Crown on land that has been public land at any time since 1972; on land that has been private, finds are co-owned by the landowner and finder.

In practice, and despite occasional divergences in wording, the laws throughout Canada disclose a common legislative intent: archaeology is important to Canada, and Canadians should not abuse their archaeological heritage any more than they would tear pages out of their family history. Although the statutes governing archaeology continue to evolve, they are the essential framework for future efforts to protect and understand this important part of Canada's heritage.