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Canada does not have federal legislation similar to the Native American Graves Protection and Repatriation Act in the US.  There is little legislation at the federal level for the protection and preservation of heritage sites and objects including burial sites. Rather, most heritage protection and preservation legislation has been enacted by provincial and territorial governments. Each province and territory has developed heritage legislation and policies that address issues of protecting and preserving cultural heritage. In British Columbia, for example, heritage and archaeological conservation and protection is regulated mainly by the Heritage Conservation Act (HCA).

I. Introduction

Though Canada has a “similar indigenous prevalence of archaeological sites” as the US and “concern for ancient burials,” the country does not have comparable federal legislation to the Native American Graves Protection and Repatriation Act (NAGPRA).[1]  Indeed, Canada is the only “G8-nations member lacking comprehensive federal cultural heritage resource management legislation.“[2]  The federal government provides “little legislative protection for heritage structures or sites.”[3]  Instead, Canada has taken a multifaceted approach to the protection of indigenous heritage that involves federal, provincial, and territorial initiatives, with the provinces being the key legislators in the area.  

Sections 91 & 92 of the Constitution Act, 1867[4] articulate the jurisdictional division of responsibilities between the federal and provincial governments,  stipulating that “Indians, and Lands reserved for the Indians” fall exclusively under the federal domain,[5] while matters related to “The Management and Sale of the Public Lands belonging to the Province,” “Local Works and Undertakings,” and “Generally all Matters of a merely local or private Nature in the Province” all fall within the jurisdiction of the provinces.[6]

Section 35 of the Constitution Act, 1982 provides constitutional protection to treaty and aboriginal rights:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.[7]

The Canadian Charter of Rights and Freedoms,[8] the Canadian version of the US Bill of Rights, states as follows:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.[9]

Finally, section 27 of the Constitution Act, 1982 stipulates that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”[10]

In terms of international obligations, Canada is a party to the Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention) and acceded to the Convention on July 23, 1976.[11] Canada is also a party to the Convention for the Protection of Cultural Property in the Event of Armed Conflict[12] and the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.[13]

While comprehensive legislation is lacking at the federal level, the federal government has been active in a federal/provincial/territorial collaboration to establish standards and guidelines for heritage preservation, as the discussion below illustrates.

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II. Standards and Guidelines for Conservation of Historic Places

The Standards and Guidelines for the Conservation of Historic Places in Canada[14] is a federal, provincial, and territorial collaboration “to regulate and guide heritage conservation and its related processes as a standard for policymakers, planners, and jurisdictions to follow in order to recognize, manage, and conserve historic places in Canada.”[15] It directs the actions of Parks Canada to “ensure the sustainable conservation of cultural resources at the protected heritage places it administers.”[16]

According to the Standards and Guidelines,

[c]ulturally sensitive places are defined here as officially recognized places that have been given special meaning by a group or a community. Those places can include burial grounds, above-ground burials, abandoned cemeteries and other sites that may have cultural or spiritual value to a community. Each province or territory has its own heritage/archaeology/cemetery statutes that relate to burial sites and human remains. In addition, some settled land claims agreements set out obligations related to burial sites and human remains. It is best practice to inform, and in some cases mandatory to consult, the local and/or culturally affiliated Aboriginal and non-Aboriginal communities before visiting or intervening on a culturally sensitive place, or before removing human remains and funerary objects considered archaeological.[17]

Section 4.2.8 (“Culturally-Sensitive Places”) of the Guidelines “provide direction when an archaeological site is considered to be, or is located in, a culturally-sensitive place.”[18] The Guidelines define “culturally-sensitive places” as “formally recognized places that have been given special meaning by a group or a community. These places include burial grounds, above-ground burials, and abandoned cemeteries, Aboriginal spiritual places, such as medicine wheels and effigies, and other sites that may have spiritual value for a community.”[19] According to the Guidelines

[c]ulturally-sensitive places deserve a separate section in these guidelines because their heritage value most often resides in their cultural, social and spiritual significance. The heritage value of culturally sensitive places is not always proportional to the extent or state of their physical remains. Therefore, great sensitivity is required so that conservation strategies preserve the associated values of these places, even when there is little tangible evidence on or in the ground. These types of archaeological sites can be found in many contexts, in urban as well as natural environments. If human remains are discovered, all activities must stop, and the proper authorities must be contacted. Any action on human remains should only be performed according to provincial and territorial legislation and be supported by the affiliated community.[20]

The following are the general guidelines for preservation and rehabilitation in culturally sensitive places as set forth in section 4.2.8 of the Guidelines:

General Guidelines for Preservation and Rehabilitation

 

Recommended

Not recommended

1

Understanding the potentially sensitive nature of an archaeological site and its environment, for a group or community, before any intervention is undertaken.

 

2

Protecting and preserving the landscape and its natural features that directly contribute to the site’s heritage value.

 

3

Recording without disturbance the elements that contribute to the heritage value in consultation with the affiliated community.

Recording the elements that contribute to the heritage value, using methods that disregard the sensitive nature of the sites.

4

Stabilizing the character-defining elements, using methods that do not affect the site’s heritage value.

 

5

Working with interested parties, particularly the affiliated community, to define acceptable activities at a culturally sensitive place.

Allowing activities in culturally sensitive places, without notifying interested parties, resulting in negative impacts on the heritage value.

6

Preserving the heritage value of a site by enabling a continued relationship between cultural groups and culturally-sensitive places, when this relationship contributes to the heritage value of the site. This includes access and use for rituals, ceremonies and traditional gatherings, while ensuring measures to protect heritage value are in place. The need to preserve the community’s relationship with the place should be balanced with the need to preserve the character-defining elements.

 

7

Protecting the archaeological context of burials to preserve associated information.

 

8

Removing, when appropriate, human remains with associated funerary objects and surrounding soil, with the support of the affiliated community and after documenting their position.

Removing human remains without the support of the affiliated community, and without including information about context and location, such as soil, position, funerary objects, etc.

Source: Standards and Guidelines for the Conservation of Historic Places in Canada § 4.2.8 at 123 (2d ed. 2010). 

The Standards define a heritage or historic place as “a structure, building, group of buildings, district, landscape, archaeological site or other place in Canada that has been formally recognized for its heritage value.”[21] According to a 2017 report this designation has been granted to about 13,000 sites across the country by various levels of government.[22]

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III. Federal Laws

A variety of federal laws may come into play with regard to the protection of indigenous heritage protection:

  • The Historic Sites and Monuments Act[23] grants the Historic Sites and Monuments Board of Canada, a federal agency, with the power to “receive and consider recommendations respecting the marking or commemoration of historic places, the establishment of historic museums and the administration, preservation and maintenance of historic places and historic museums, and shall advise the Minister in carrying out his powers under this Act.”[24] The Board has the “mandate to advise the Minister of Environment on the designation of national historic sites, heritage railway stations and heritage lighthouses.”[25] The Board “evaluates applications for designating national historic places, heritage railway stations and heritage lighthouses. Archaeological sites of potential national significance will be referred to the Historic Sites and Monuments Board of Canada for consideration.”[26]
  • The Parks Canada Agency Act[27]stipulates that the Parks Canada Agency (or Parks Canada) is the federal agency responsible for the implementation “of policies of the Government of Canada that relate to national parks, national historic sites, national marine conservation areas, other protected heritage areas and heritage protection programs.”[28]  Parks Canada has the

largest share of federal responsibilities related to heritage site conservation. It has direct stewardship of 171 national historic sites, 505 national heritage buildings, 10 heritage lighthouses, 6 Canadian heritage rivers and 12 world heritage sites. Around 20 other federal departments and agencies administer a total of 767 federal heritage buildings.[29]

Parks Canada manages cultural resources using its Cultural Resource Management Policy.[30]  The purpose of this policy is “to ensure that its requirements are effectively applied at our protected heritage places so that cultural resources are conserved and their heritage value is shared for the understanding, appreciation and enjoyment of present and future generations.”[31]

  • The Canada National Marine Conservation Areas Act[32] provides that the Governor in Council “may make regulations ‘for the protection of cultural, historical and archaeological resources’ in marine conservation areas.”[33]
  • The Department of Canadian Heritage “plays an important role in identifying, recognizing, protecting and presenting Canadian historic and natural sites, notably national parks, national historic sites, historic canals, heritage railway stations and federal heritage buildings.”[34]  The Department also “administers other heritage resource instruments, such as a policy framework for the protection of archaeological resources,” called the Archaeological Heritage Policy Framework.[35]
  • Canada’s federal Criminal Code also plays a role in cultural heritage protection.  Improper interference with human remains is an indictable offense under section 182 of the Code.[36]

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IV. Provincial Laws

A. Overview

As noted above, most Canadian heritage protection and preservation legislation has been enacted by provincial and territorial governments.  Each province and territory has “developed legislative and policy frameworks to address issues of cultural heritage and Indigenous relations amongst other responsibilities.”[37]  In Ontario, for example, heritage protection is regulated by the Ontario Heritage Act,[38] while British Columbia it is protected under the Heritage Conservation Act.  According to one article on cultural heritage in Canada,

[a]ll provinces have enacted heritage conservation laws that control excavations affecting historical resources through a permit system, provide for the reporting, designation and protection of historical resources, and vest ownership of archaeological and other historical resources and sites discovered in or on provincial public (and in some instances private) lands in the provincial Crown.[39]

Another article provides the following summary of the provincial legal frameworks for heritage management in Canada:

Each province and territory in Canada has cultural heritage protection legislation, and an administrative unit to implement and manage activities resulting from it. The administrative units charged with regulating work under these acts are situated in a variety of ministries or departments that often have a broader scope beyond cultural heritage. The basic principle of most of this legislation is to provide blanket protection for all cultural heritage remains and sites, on private or public property, recorded or not, and the use of permits or licenses to control any alterations to those sites. Although these laws vary, they share many common elements regarding the nature and kind of heritage resources protected, special protection provisions, control over the conduct of work, ownership and stewardship, management of impacts, and civil remedies for contravention. Penalties, which may include fines and/or incarceration, vary across the country with differentiation between individual and corporate violators.[40]

In regard to indigenous burial grounds and human remains a complex set of laws can apply, including heritage protection legislation, coroners legislation, and cemeteries legislation.[41]  However, provincial cemeteries legislation in Canada is “designed only for modern (i.e., non-ancient) designated burial grounds” and “therefore it is of no value in the preservation of most aboriginal burial grounds,” according to one source.[42]  Ontario and Prince Edward Island appear to be an exception where burial heritage protection is provided by their respective cemeteries legislation.[43]

In Canada, municipalities fall under the jurisdiction of provincial governments, and “[h]eritage management has increasingly fallen under the responsibility of municipalities in recent years as provinces transfer responsibilities due to budgetary constraints and lack of political interest.”[44] Municipalities have the power to pass “bylaws that pertain to the heritage management of heritage buildings, districts, and even cultural landscapes.”[45]

B. The British Columbia Example

In British Columbia, heritage and archaeological conservation and protection is regulated mainly by the Heritage Conservation Act (HCA).[46]  The HCA provides “for the protection of British Columbia’s archaeological resources, covering sites dated before 1846” and “apply whether sites are located on public or private land.”[47]  The Archaeology Branch of the British Columbia Ministry of Forests, Lands and Natural Resource Operations “encourages and facilitates the protection, conservation and public appreciation of British Columbia’s unique archaeological resources under the Heritage Conservation Act.”[48]

Archaeological or heritage sites or objects are protected through designation as “Provincial heritage sites” or “Provincial heritage objects (section 9), or “through automatic protection by virtue of being of particular historic or archaeological value (section 13).”[49]

  •  “Heritage object” under the Act means “whether designated or not, personal property that has heritage value to British Columbia, a community or an aboriginal people.”
  • “Heritage site” means “whether designated or not, land, including land covered by water, that has heritage value to British Columbia, a community or an aboriginal people.”
  • “Heritage value” means “the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object.”[50]

One exception to this designation regime is Ontario’s Cemeteries Act, which “governs the management of land containing human remains, including those that have not been approved or consented to as a cemetery.”[51]

Staff of the Archeology Branch “authorize archaeological work throughout the province by means of a permit system.”[52]  According to BC’s Ministry of Forests, Lands, Natural Resource Operations and Rural Development website,

[p]rotected archaeological sites may not be altered, i.e. changed in any manner, without a permit issued by the Minister or designate. The HCA affords considerable discretionary authority in determining if, and under what conditions, such permits are to be granted (sections 12 and 14).[53]

The Archeology Branch also “maintains a provincial heritage registry of all known archaeological sites, heritage sites and objects, heritage wrecks and other types of sites.”[54]

Section 4 of the Act allows the Province to “enter into a formal agreement with a first nation with respect to the conservation and protection of heritage sites and heritage objects that represent the cultural heritage of the aboriginal people who are represented by that first nation.”[55] The Archaeology Branch has entered into various agreements[56] with First Nations and other provincial agencies.  According to BC’s Ministry of Forests, Lands, Natural Resource Operations and Rural Development website:

[t]hese agreements are used to clarify responsibilities of each group and, in the case of First Nations, to provide a more formal role in archaeological resource management. The Heritage Conservation MOU highlights the importance of heritage protection and conservation during development projects and resource extraction. It establishes processes to effectively share information between the Province and Treaty 8 First Nations and enables the participation of Treaty 8 First Nations in heritage conservation.[57]

In 1994, the Heritage Conservation Statute Amendment Act “enabled municipal powers to protect local heritage from alteration or destruction.  The Vancouver Charter was amended to improve regulations for heritage structures and sites.”[58]

1. Heritage Designation

Heritage designation of sites and objects by the Lieutenant Governor are done under section 9 of the Act according to the procedure stipulated under section 10.  Before a designation can be made, the minister must serve a notice of proposed designation to the following persons:

(a) in the case of land,

(i)     all persons who, according to the records of the land title office, have a registered interest in the land to be designated,

(ii)   the local government or local governments having jurisdiction over the land to be designated, and

(iii)  the first nation or first nations within whose traditional territory the land to be designated lies;

(b) in the case of objects,

(i)     the person who has possession of the object,

(ii)   all parties who, according to the records of the personal property registry established under the Personal Property Security Act, have a registered interest in the object, and

(iii)  any other person or party who, in the opinion of the minister, is or may be the owner of the object or has or may have a proprietary interest in the object;

(c) any other prescribed person.[59]

A person or party served with notice may “serve the minister with a notice of objection to the proposed designation within 30 days after receiving the notice of the proposed designation.”[60]

On receiving a notice of objection, “the minister must review the objection and may then amend or cancel the proposed designation as the minister considers appropriate.[61]”  Before a designation is made, the minister must

advise the Lieutenant Governor in Council if any notice of objection to the proposed designation has been received and, if so received, provide the Lieutenant Governor in Council with a copy of each notice of objection received, the results of the review of the notice or notices of objection and the terms and conditions of any amendment to the proposed designation.[62]

Subsequently the Act stipulates that,

(5)  Within 30 days after

(a)  the minister cancels a proposed designation,

(b)  the Lieutenant Governor in Council makes a designation, or

(c)   the Lieutenant Governor in Council decides not to make a designation,

the minister must serve notice on the persons entitled to notice under subsection (1) that a designation has or has not been made.[63]

If a designation made under section 9 “causes, or will cause at the time of designation, a reduction in the market value of the designated property,” the government must compensate an owner of the designated property who makes an application, and “the compensation must be in an amount or in a form the minister and the owner agree on or, failing an agreement, in an amount or in a form determined by binding arbitration.”[64]

Section 23(1) of the Act grants the Lieutenant Governor in Council to pursuant to an order “designate a heritage site on Crown land as a Provincial heritage property and the Provincial heritage property includes the collection of accessioned artifacts associated with that heritage site.”[65]

2. Permits

The Director of the Archaeology Branch and the Manager, Permitting and Assessment Section, “have been authorized to exercise the powers of the Minister to issue permits under sections 12(2) and 14(2), as well as ministerial orders under section 14(4) where necessary for emergency conservation purposes.”[66]

a. Heritage Inspection and Heritage Investigation Permits

Heritage Inspection and Heritage Investigation Permits are issued pursuant to section 14 of the HCA “subsequent to Branch review.”  Section 14(1) of the Act stipulates that “[a] person must not excavate or otherwise alter land for the purpose of archaeological research or searching for artifacts of aboriginal origin except under a permit or order issued under this section.”[67]  The objective of a heritage inspection is to “assess the archaeological significance of land or other property.  In this regard, the inspection determines the presence of archaeological sites which warrant protection, or are already protected, under the HCA.“[68]

Archaeological impact assessment studies are required where potential conflicts have been identified between archaeological resources and a proposed development.

Sites are located and recorded, and site significance is evaluated to assess the nature and extent of expected impacts. The assessment includes recommendations to manage the expected impact of property development on the site.

These recommendations may include:

· Avoiding the site.

· Recovering archaeological site information prior to land altering activities.

· Monitoring for additional archaeological site information during land altering activities.

Assessments require a heritage inspection permit issued by the branch. Permitted archaeological impact assessments are used to identify site locations, evaluate site significance and determine the magnitude of development related impact when sites cannot be avoided.[69]

A heritage investigation is “undertaken in order to recover information which might otherwise be lost as a result of site alteration or destruction.”[70]

b. Alteration Permits

Alteration permits are issued under section 12 of the Act.  The site alteration permit “authorizes the removal of residual archaeological deposits once the inspection and/or investigation are completed.”[71]  If a permit is issued, it

(3) . . . may include requirements, specifications and conditions that the minister considers appropriate and, without limiting the generality of this, the permit may

(a) be limited to a specified period of time or to a specified location,

(b) require the holder of the permit to consult with or obtain the consent of one or more parties whose heritage the property represents or may represent,

(c) require the holder of the permit to provide the minister with reports satisfactory to the minister, and

(d) specify a repository for heritage objects that are removed from the heritage property. [72]

The branch requires fifteen days to review permit applications where no further information or clarification is needed.[73]  In addition, between fifteen and thirty days is also required in order to provide an “opportunity for those who may be affected by a permitting decision (e.g., First Nations) to have their comments considered.”[74]

c. Consultation and Balancing Interests

Catherine Bell, professor of Aboriginal law at the University of Alberta, notes that “absent from the HCA and other provincial statutes,” but contained in some agreements with First Nations, “is an express and mandatory duty for the provinces to consult and accommodate [the] interest of First Nations before issuing heritage inspection, investigation or site alteration permits for protected sites.”[75]  However, “some consultation before issuing permits occurs as a matter of provincial policy”:[76]

An important decision in B.C. was the Nanoose case in which the Nanoose First National opposed development of a condominium complex and a sewage facility on land where a burial ground and village site were located. Applying principles of procedural fairness, the court held the Minister was required to give notice of impending issuance of permits and that affected First Nations had a right to be heard. Following this litigation, in the late 1990s the B.C. Archaeological Branch adopted a policy to notify and consider comments from First Nations ‘known to assert a traditional interest in the area of the proposed activities.’[77]
. . .
If a permit under the HCA authorizes damage or alteration and is the only permit that can do this, the duty to consult is clearly triggered. The example given by the BCCA in Lax Kw’alaams is a First Nation claiming Aboriginal title to a burial site on privately owned land, an owner wishing to build a house on that land, and no other statute or ministry is involved. At the very least in these circumstances consultation and accommodation are required. However, this obligation is not mandated or clear under B.C. and other provincial heritage legislation for heritage sites located on private land, nor is the process mandated or clear when other permits may be required for private or public land and specific agreements with First Nations have not been entered.[78]

It should be noted that the Supreme Court of Canada (SCC) has issued several decisions that Canadian governments have a constitutional duty to consult and, “if appropriate depending on the depth of consultation required, accommodate if actions taken adversely impact or have the potential to adversely impact heritage sites where Aboriginal rights or title are established or can be credibly asserted.”[79]  However, the constitutional duty to consult developed by SCC decisions are “concerned with treaty rights or Aboriginal title claims against Crown land, not private lands held by individuals or corporations.”[80]

Authorities balance interests in their decision-making process concerning permits:

Balancing interests is also inherent in the process for issuing permits under provincial heritage conservation legislation that enables a provincial Minister or delegate to permit otherwise prohibited actions of alteration or destruction of a protected heritage site, such as those listed under B.C.’s description of heritage sites under the HCA, if the balance of interests weighs in favour of development. . . . However the challenge of reconciling Aboriginal land rights with private property interests has often resulted in balancing process weighing against preservation and the assumption in implementation of government heritage policy that site alteration permits will rarely be denied or development stopped.[81]

3. Heritage Protection

The Act prohibits the destruction, excavation or alteration of archaeological sites without a permit.  Pursuant to section 13(2)(b) of the HCA, a permit is required under section 12 or 14 before a person can undertake any actions affecting a burial place of historical or archaeological value, human remains or associated heritage objects:

13 (1)  Except as authorized by a permit issued under section 12 or 14, a person must not remove, or attempt to remove, from British Columbia a heritage object that is protected under subsection (2) or which has been removed from a site protected under subsection (2).

(2) Except as authorized by a permit issued under section 12 or 14, or an order issued under section 14, a person must not do any of the following:

(a)  damage, desecrate or alter a Provincial heritage site or a Provincial heritage object or remove from a Provincial heritage site or Provincial heritage object any heritage object or material that constitutes part of the site or object;
(b)  damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains or any heritage object from a burial place that has historical or archaeological value;
(c)   damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;
(d)  damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846;
(e)   damage or alter a heritage wreck or remove any heritage object from a heritage wreck;
(f)   damage, excavate, dig in or alter, or remove any heritage object from, an archaeological site not otherwise protected under this section for which identification standards have been established by regulation;
(g)  damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of unknown origin if the site may be protected under paragraphs (b) to (f);
(h)  damage, desecrate or alter a site or object that is identified in a schedule under section 4 (4) (a);
(i)   damage, excavate or alter, or remove any heritage object from, a property that is subject to an order under section 14 (4) or 16.[82]

4.  Other Measures

Section 16 of the Act provides for temporary protection orders “[i]f the minister considers that property has or may have heritage value and is likely to be altered for any reason, the minister may issue, to a person or class of persons, a stop work order that prohibits any alteration of the property for a period of up to 120 days, subject to any requirements and conditions the minister considers appropriate.”[83]

The minister also has other powers, including the power to purchase or acquire property:

20   (1)  To further the objects of this Act, the minister may do one or more of the following:

(a) acquire, manage and conserve property or acquire an interest in property;
(b) enter into agreements with a person, organization, local government, first nation or the government of Canada or of a province;
(c) conduct and arrange exhibits or activities to inform and stimulate the interest of the public in any matter related to the purposes of this Act;
(d) subject to a trust or agreement under which a property was obtained, dispose of the property and execute instruments required to effect the disposal;
(e) receive, by donation, public subscription, devise, bequest or otherwise, money or property;
(f) assist in or undertake research, study or publication respecting heritage conservation;
(g) provide grants, advice and services to other parties having aims and objectives consistent with the purposes of this Act;
(h) establish and maintain one or more inventories of heritage sites and heritage objects, including a list of heritage buildings for which the Alternate Compliance Methods of the British Columbia Building Code may apply.

(2)  Property acquired by the minister under this Act is the property of the government and title to the property may vest in the name of the government.

(3)  Despite the Land Act, property acquired by the minister under this Act may be dealt with by the minister under this Act.[84]

The minister can also intervene for purposes of preservation under section 21 of the Act:

21   (1)  If the minister considers that property protected under section 13 (2) is subject to damage or deterioration, the minister may order the owner, on terms and conditions that the minister considers appropriate, to preserve the property at the expenses of the government.

(2)  If the minister considers that property protected under section 13 (2) is subject to damage or deterioration and is being unreasonable neglected by the owner, the minister may order the owner, on terms and conditions and to specifications that the minister considers appropriate, to preserve the property at the expense of the owner or at the expense of the owner and the government on a cost sharing basis.[85]

Civil remedies, including injunctions to restrain persons from committing contraventions of the Act; government applications for restoration; or compliance orders are provided for under section 34 of the Act, while offenses and penalties for persons and corporations are provided by section 36 of the Act:

36   (1)  A person who does any of the following commits an offence:

(a)  contravenes section 13 (6), 14 (1) or (8) or a provision of the Park Act referred to in section 23 (2) as it applies to a Provincial heritage property;
(b)  fails to comply with or contravenes a requirement or condition of an order or permit under section 12 (2) (a), 14 (2) or (4), 16, 19 (2), 23 (2) or 34 (3);
(c)   contravenes a regulation made under section 23 (2) or 37 (2) (e);
(d)  contravenes section 13 (1) or (2).

(2)  A person convicted of an offence under subsection (1) (a) to (c) is liable to a fine of not more than $2 000 or to imprisonment for a term of not more than 6 months or to both.

(3)  A person convicted of an offence under subsection (1) (d) is liable,

(a)  if the person is an individual, to a fine of not more than $50 000 or to imprisonment for a term of not more than 2 years or to both, or
(b)  if the person is a corporation, to a fine of not more than $1 000 000.

(4)  If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence also commits the offence and is liable,

(a)  if it is an offence under subsection (1) (a) to (c), to the penalty set out in subsection (2), or
(b)  if it is an offence under subsection (1) (d), to the penalty set out in subsection (3) (a).[86]

5. Procedures Regarding Human Remains

The following procedures will normally apply in cases where human remains are discovered “fortuitously through various land altering activities such as house renovations, road construction or natural erosion,” or “during archaeological studies conducted under an HCA permit”:

1. Fortuitous Discoveries

In cases where the branch has been notified that human remains have been discovered by chance, the following procedures should normally apply:

  • the Coroner’s Office and local policing authority should be notified as soon as possible.
  • the Coroner’s Office should determine whether the matter is of contemporary forensic concern. The branch may provide information and advice that may assist in this determination.
  • if the Coroner’s Office determines the reported remains are not of forensic concern, the branch will attempt to facilitate disposition of the remains.
  • if a cultural affiliation for the remains can be reasonably determined, the branch will attempt to contact an organization representing that cultural group.
  • if remains are determined to be of aboriginal ancestry, the branch will attempt to contact the relevant First Nation(s).
  • generally, if remains are still interred and are under no immediate threat of further disturbance, they will not be excavated or removed.
  • if the remains have been partially or completely removed, the branch will facilitate disposition.
  • if removal of the remains is determined to be appropriate, they will be removed under authority of a permit issued pursuant to section 12 or 14, or an order under section 14 of the HCA, respecting the expressed wishes of the cultural group(s) represented to the extent this may be known or feasible.
  • if circumstances warrant, the branch may arrange for a qualified physical anthropologist or an archaeologist with training in human osteology to provide an assessment of the reported remains in order to implement appropriate conservation measures.
  • analysis should be limited to basic recording and in-field observations until consultation between the branch and appropriate cultural group(s) has been concluded.

2. Permitted Archaeological Projects

In cases where human remains are encountered in the course of a permitted project, the Archaeology Branch should be contacted as soon as possible.

  • the remains are to be handled in accordance with the methods specified in the permit, respecting the expressed wishes of the cultural group(s) represented, to the extent that these may be known or feasible.
  • if the permit does not specify how remains are to be handled and if the cultural affiliation of the remains can be reasonably determined, the field director or permit-holder should attempt to contact an organization representing that group. The permit-holder or field director should advise the branch of the organization contacted, and any wishes expressed by that organization.
  • the branch, in consultation with the appropriate cultural group(s), will determine disposition of the remains.
  • analysis should be limited to basic recording and in-field observations, until consultation between the branch and appropriate cultural group(s) has been concluded.[87]

6. Development Projects

As noted earlier, the law requires a person to obtain a site alteration permit in order to develop within a protected archaeological site.  To receive a site alteration permit, the Archaeology Branch “will need to know exactly where the archaeological site is located, the site significance, and how development will affect the site.”  The Ministry provides an FAQ for property owners and developers that explains the archaeological impact assessment:

This task, called an archaeological impact assessment, includes field work and is completed by a professional consulting archaeologist under Provincial authority. The archaeologist will work with you to develop options on how to manage impacts to the archaeological site.

If development related damage to significant archaeological deposits cannot be avoided, it may be necessary to complete an archaeological excavation to recover the information that will be destroyed as a result of development.  This work is completed under a separate permit by a professional consulting archaeologist.

If the impact assessment results show that you are able to develop without affecting the archaeological site, you will not require a site alteration permit to proceed with development.[88]

The Provincial government has published a handbook, the British Columbia Archaeological Resource Management Handbook, which provides a summary of the Archaeological Impact Assessment and review process in British Columbia.[89]  This process applies “principally to development projects which, by virtue of their scale, location, extent of impact, administrative or jurisdictional complexity, or other factors, are subject to British Columbia’s environmental impact assessment and review processes.”[90]  The Ministry’s Archaeology website provides an overview of the investigative process:

Archaeological impact assessment and review in British Columbia applies mainly to development projects that are subject to British Columbia's environmental impact assessment and review processes. However, the same principles can also apply, with minor modification, to other developments.

A particularly important characteristic of the process used in British Columbia is its flexibility. It is not intended as a “cookbook” approach to all development projects. Although certain categories of information are needed for decision making, each archaeological study must be tailored to meet specific project characteristics and needs.

Representatives of the Archaeology Branch are available to meet with project proponents to provide project-specific clarification and interpretation of the process. Depending on the project, flexibility can be expected in the staging of impact assessment and management studies, the level of detail at which these studies are undertaken, and the reporting requirements.

The role of the branch is not to prohibit or impede land use and development, but rather to assist the development industry, the province, regional authorities, and municipalities in making decisions leading to rational land use and development.

When the benefits of a project outweigh the benefits of archaeological preservation, the branch will work with the proponent to determine how the project can go ahead with minimal archaeological resource loss. Where the loss of significant archaeological values cannot be avoided, the branch ensures that appropriate compensatory measures are implemented.[91]

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V. Implementation and Effectiveness

Some commentators have criticized the lack of strong federal legislation in this area and differential treatment of modern cemeteries and aboriginal burial sites.  According to Professor Bell,

Canadian heritage property law and practice seeks to balance constitutional obligations to Aboriginal peoples and various dimensions of heritage value with benefits derived from land and resource development; but heritage, scientific and Aboriginal rights and interests are frequently outweighed by economic and private property rationale. This situation can be contrasted to the treatment of burials situated in lands set aside and recognized as modern cemeteries and governed by legislation which appreciates their centrality to the culture and religious traditions of living people and anticipates ongoing access, care and preservation of burial places. Cemeteries may also be negatively impacted by development, but the legal and political process required to expropriate the land for a public benefit and disturb cemeteries is often more difficult and complex. In Canada this has resulted in Aboriginal people asserting rights of ownership and control to protect burial places and other significant heritage sites, engage in associated ceremonies and legal traditions, attract public support and draw particular attention to the ongoing connection of ancestral burial grounds to the human rights, culture and wellbeing of descendant communities. Heritage policy, practice and law reform more reflective of Indigenous laws and values are also at the forefront in modern treaty, land claim and self-government negotiations.[92]

As noted, Canada lacks specific federal legislative framework recognizing and affirming broad-based indigenous cultural and intellectual property protection.  Furthermore, provincial legislation in this area has proven to be deficient in recognizing and affirming indigenous culture and heritage, according to one commentator.[93]

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Prepared by Tariq Ahmad
Foreign Law Specialist
March 2019


[1] Jerome S. Cybulski, Canada, in The Routledge Handbook of Archaelogical Human Remains and Legislation 526-27 (Nicholas Marquez-Grant & Linda Fibiger eds., 2011).

[2] D. Pokotylo & A.R. Mason, Canada: Cultural Heritage Management, in Encyclopedia of Global Archaeology 1104 (Smith C., ed., Springer, New York, NY, 2014), https://link.springer.com/content/pdf/10.1007/978-1-4419-0465-2_1147.pdf, archived at https://perma.cc/7ZMN-2KD4.

[3] Heritage Legislation: An Overview, Vancouver Heritage Foundation, https://www.vancouverheritage foundation.org/learn-with-us/policies-by-laws/heritage-legislation-an-overview/ (lasted visited Feb. 28, 2019), archived at https://perma.cc/D2P5-TGF8

[4] Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), https://laws-lois.justice.gc.ca/eng/Const/FullText.html, archived at https://perma.cc/EU7S-N58M.

[5] Id. § 91(24).

[6] Id. § 92.

[7] Constitution Act, 1982, § 35, https://laws-lois.justice.gc.ca/eng/Const/page-16.html#docCont (footnote in original omitted), archived at https://perma.cc/AFZ6-XP9J.

[8] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.), https://laws-lois.justice.gc.ca/eng/const/page-15.html, archived at https://perma.cc/YC4X-26PK

[9] Id. § 25 (footnote in original omitted).

[10] Constitution Act, 1982, § 27.

[11] Convention Concerning the Protection of the World Cultural and Natural Heritage, Dec. 17, 1975, 15511 U.N.T.S. 1037, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800fece0&clang=_en, archived at https://perma.cc/3DDS-TFE4 ; States Parties Ratification Status, World Heritage Convention, https://whc.unesco.org/en/statesparties/, archived at https://perma.cc/Z6A5-BBJL.

[12] Convention for the Protection of Cultural Property in the Event of Armed Conflict, Aug. 7, 1956, 3511 U.N.T.S. 249, https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280145bac&clang=_en, archived at https://perma.cc/FEY4-XL92.

[13] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, April 24, 1972, 3511 U.N.T.S. 249, https://treaties.un.org/Pages/show Details.aspx?objid=08000002801170ec&clang=_en, archived at https://perma.cc/RB3P-M23A.

[14] Standards and Guidelines for the Conservation of Historic Places in Canada (2d ed. 2010), https://www.historicplaces.ca/media/18072/81468-parks-s+g-eng-web2.pdf, archived at https://perma.cc/X54P-GD9L

[15] Julia Catherine Marie Stevens, Indigenous Intangible Cultural Heritage: Towards an Indigenous Approach to Canadian Heritage Management and Planning 21 (M.A. Thesis, University of Waterloo, 2017), https://core.ac. uk/download/pdf/144150410.pdf, archived at https://perma.cc/7QAQ-TRFH

[16] House of Commons, Report of the Standing Committee on Environment and Sustainable Development, Preserving Canada’s Heritage: The Foundation for Tomorrow 9 (42nd Parl. 1st Sess., Dec. 2017), http://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9295003/envirp10/envirp10-e.pdf, archived at https://perma.cc/5MA5-LF9E.

[17] Standards and Guidelines for the Conservation of Historic Places in Canada, supra note 14, at 99.

[18] Id. § 4.2.8, at 122.

[19] Id.

[20] Id.

[21] Standards and Guidelines for the Conservation of Historic Places in Canada, supra note 14, at 5; see also Definitions and Heritage FAQs, Heritage BC, https://heritagebc.ca/resources/definitions-heritage-faqs/ (last visited Feb. 28, 2019), archived at https://perma.cc/6GL7-3ZTE.

[22] Report of the Standing Committee on Environment and Sustainable Development, supra note 16, at 12.

[23] Historic Sites and Monuments Act, R.S.C., 1985, c. H-4, https://laws-lois.justice.gc.ca/eng/acts/H-4/Full Text.html, archived at https://perma.cc/TN6U-WSYL.

[24] Id. § 7.

[25] Report of the Standing Committee on Environment and Sustainable Development, supra note 16, at 13.

[26] Id. at 16.

[27] Parks Canada Agency Act, S.C. 1998, c. 31, https://laws-lois.justice.gc.ca/eng/acts/p-0.4/FullText.html, archived at https://perma.cc/Y9HU-FVAU.

[28] Id. § 6(1).

[29] Report of the Standing Committee on Environment and Sustainable Development, supra note 16, at 15.

[30] Parks Canada, Cultural Resource Management Policy (effective Jan. 1, 2013), https://www.pc.gc.ca/en/ docs/pc/poli/grc-crm, archived at https://perma.cc/Z8L8-859U.

[31] Report of the Standing Committee on Environment and Sustainable Development, supra note 16, at 15.

[32] Canada National Marine Conservation Areas Act, S.C. 2002, c. 18, https://laws-lois.justice.gc.ca/eng/ acts/c-7.3/FullText.html, archived at https://perma.cc/D7PS-HXVY.

[33] Report of the Standing Committee on Environment and Sustainable Development, supra note 16, at 15.

[34] Canadian Environmental Assessment Agency, Reference Guide on Physical and Cultural Heritage Resources (1996), https://www.canada.ca/en/environmental-assessment-agency/services/policy-guidance/reference-guide-physical-cultural-heritage-resources.html, archived at https://perma.cc/QK35-JV2S.

[35] Archaeological Heritage Policy Framework– 1990, Parks Canada, https://www.pc.gc.ca/en/docs/pc/poli/ arch (last updated Mar. 30, 2017), archived at https://perma.cc/WYC6-4HWQ.

[36] Human Remains, Parks Canada, https://www.pc.gc.ca/en/docs/r/pfa-fap/sec7/decouv_discov3 (last modified Mar. 30, 2017), archived at https://perma.cc/P8D7-WXFS.  

[37] Stevens, supra note 15, at 54.

[38] Ontario Heritage Act, R.S.O. 1990, c. O.18, https://www.ontario.ca/laws/statute/90o18, archived at https://perma.cc/AAA6-UN6D.

[39] Catherine Bell, Ownership and Trade of Aboriginal Cultural Heritage in Canada, in International Trade in Indigenous Cultural Heritage: Legal and Policy Issues 379 (Christoph Beat Graber &Karolina Kuprecht eds., 2012).

[40] Pokotylo & Mason, supra note 2, at 1104.

[41] Human Remains, Parks Canada, supra note 36.

[42] Bruce Ziff & Melodie Hope, Unsitely: The Eclectic Regimes that Protect Aboriginal Cultural Places in Canada, in Protection of First Nations Cultural Heritage: Laws, Policy, and Reform 189 (Catherine Bell & Robert Paterson eds., 2009).

[43] Bell, supra note 39, at 379.

[44] Stevens, supra note 15, at 60.

[45] Id. at 64.

[47] Permits and Permitting, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www.for.gov.bc.ca/archaeology/archaeology_professionals/permits.htm (last visited Feb. 28, 2019), archived at.   

[48] About the Branch, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www.for.gov.bc.ca/archaeology/about.htm (lasted visited Feb. 28, 2019), archived at https://perma.cc/7E52-B88K.

[49] Permits and Permitting, supra note 47.

[50] Heritage Conservation Act, § 1.

[51] Ziff & Hope, supra 42, at 189.

[52] About the Branch, supra note 48.

[53] Permits and Permitting, supra note 47.

[54] About the Branch, supra note 48.

[55] Heritage Conservation Act, § 4(1).

[56] Agreements, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www.for.gov.bc.ca/archaeology/legislation_agreements_policies_guidelines_ bulletins/agreements.htm, (lasted visited Feb. 28, 2019), archived at https://perma.cc/S4LH-A7E8.

[57] Id.

[58] Heritage Legislation: An Overview, Vancouver Heritage Foundation, https://www.vancouverheritage foundation.org/learn-with-us/policies-by-laws/heritage-legislation-an-overview/(lasted visited Feb. 28, 2019), archived at https://perma.cc/ZJB5-TGFS.

[59] Heritage Conservation Act, § 10(1).

[60] Id. § 10(2).

[61] Id. § 10(3).

[62] Id. § 10(4).

[63] Id. § 10(5).

[64] Id. § 11(1).

[65] Id. § 23(1).

[66] Found Human Remains, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www2.gov.bc.ca/gov/content/industry/natural-resource-use/archaeology/ guidance-policy-tools/policy (lasted visited Feb. 28, 2019), archived at https://perma.cc/EE2M-TZ5G.   

[67] Heritage Conservation Act, § 14(1).

[68] Permits and Permitting, supra note 47.

[69] What an Archaeological Impact Assessment Entails, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www.for.gov.bc.ca/archaeology/preservation_ process/ archaeological_impact_assessment.htm (lasted visited Feb. 28, 2019), archived at https://perma.cc/ CS6H-7MKV.

[70] Permits and Permitting, supra note 47.

[71] Id.

[72] Heritage Conservation Act, § 12(3).

[73] Permits and Permitting, supra note 47.

[74] Id.

[75] Catherine Bell, First National Control over Archeological Sites: Contemporary Issues in Heritage Law, Policy and Practice, in Comparative Law and Anthropology 65 (James A.R. Nafziger, 2017).

[76] Id. at 66.

[77] Id.

[78] Id. at 70.

[79] Id. at 64.

[80] Id. at 71.

[81] Id. at 74.

[82] Heritage Conservation Act, § 13.

[83] Id. § 16.

[84] Id. § 20.

[85] Id. § 21.

[86] Id. § 36.

[87] Found Human Remains, supra note 66.

[88] Property Owners and Developers Frequently Asked Question, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www.for.gov.bc.ca/archaeology/ property_owners_and_developers/frequently_asked_questions.htm (lasted visited Feb. 28, 2019), archived at https://perma.cc/LB44-Q43Y.

[89] Ministry of Small Business, Tourism and Culture, British Columbia Archaeological Resource Management Handbook (1990), https://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry/natural-resource-use/archaeology/forms-publications/archaeological_resource_management_ handbook.pdf, archived at https://perma.cc/62RS-G3VX

[90] Id.

[91] Investigative Process – Overview, British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development, https://www.for.gov.bc.ca/archaeology/preservation_ process/investigative_process.htm (last visited Feb. 28, 2019), archived at https://perma.cc/8PZB-RSLS.

[92] Bell, supra note 75, at 56.

[93] John Borrows, Policy Paper: Implementing Indigenous Self-determination through Legislation in Canada (Apr. 20, 2017), http://www.afn.ca/wp-content/uploads/2018/09/2017-04-20-Implementing-Indigenous-self-determination-through-policy-legislation.pdf, archived at https://perma.cc/MR9M-3AVM

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Last Updated: 12/30/2020