Beware of Heritage or Archaeological Issues #564
CATEGORY: Legally Speaking
TAGS: Archaeological Sites Heritage Conservation Act Heritage Designation Heritage Sites Zoning
When looking for a property to develop or redevelop, prudent buyers are well advised to investigate the suitability of the property for their plans prior to committing to purchase it. Depending on the property and the type of development, this may include researching or retaining the appropriate professionals to research and advise on any zoning concerns or particular municipal issues such as:
- official community plans,
- availability or sufficiency of necessary utilities such as water,
- environmental issues such as riparian area protections,
- invasive species, or contaminated sites,
- encroachments such as rights of way or easements,
- geotechnical concerns, etc.
An important issue that may impact development, but is sometimes only discovered once shovels are in the ground, is whether the property has any archaeological features of concern. British Columbia, particularly its coastal regions, bears archaeological evidence of some 13,000 years of human occupation,1 confirming First Nations oral history originating from time immemorial.
The potential conflict between private property rights and the public interest in discovering, researching, and preserving archaeological remains is poorly addressed by the current legislative and administrative framework in BC. Consultation efforts are currently underway2 on revisions to this framework, including its administration, to align with the objectives of the UN Declaration on the Rights of Indigenous People. Whether any of the revisions will address the sometimes exorbitantly expensive impact of archaeological finds on private property owners remains to be seen.
Protected archaeological sites are identified according to standards established by regulation. There are currently over 60,000 known sites in BC, and there likely are many more undiscovered sites. Both known and undiscovered sites are protected by the Heritage Conservation Act,3 which prohibits the:
- damage or removal of any heritage objects or human remains from a burial place with historical or archaeological value;
- damage, alteration, covering or moving of an aboriginal rock painting or carving that has historical or archaeological value; and
- damage, excavation, digging in, alteration, or removal of any heritage objects from an archaeological site identified by regulation.
What is a buyer to do when a seller does not disclose any knowledge of any heritage or archaeological issues on a property, and there is nothing noted on the title to the property? Such a buyer might request a search4 of the property through the Archaeology Branch, which strictly manages and protects access to information about known archaeological sites to prevent damage to the sites by vandalism.5 If time is of the essence, such information might be obtained more quickly by hiring a professional archaeologist (https://www.bcapa.ca/) with access to a GIS application called Remote Access to Archaeological Data (RAAD).6 Even if a search yields no results, this is not a guarantee that there are no archaeological concerns on the property. It is possible that an unknown and unrecorded site may be discovered during development, and such a site is nevertheless protected under the Heritage Conservation Act.
A buyer might also search the local or municipal heritage inventory list to determine whether the property has been noted as being of interest. Note that presence on a heritage inventory list is not the same as heritage designation. The latter is typically noted on the title to the property and can result in the Province having to compensate the property’s owners if there is a reduction in the property's market value as a result of the designation. This is one of the reasons why designation is rare. A property may still have significant archaeological protections even if not officially designated.
There have been some notable cases regarding archaeological concerns in the news and/or in the Courts. For example, Mackay v. British Columbia7 was a 2013 case concerning an Oak Bay homeowner who had to undertake significant archaeological work before replacing an existing single-family home, which was not a designated heritage site. Nothing on the property’s title would have indicated any archaeological significance. The homeowner sued the Province for approximately $600,000, being the costs associated with obtaining a site alteration permit, delays in construction, and loss in property value. She also challenged the legal authority of the Archaeology Branch to require a site alteration permit in the first place, in the absence of official heritage designation of the property, and to order her to pay for the archaeological work without a Ministerial order. After an arbitration, appeal, and judicial review, the homeowner successfully established that the Archaeology Branch could not require her to pay for a heritage inspection and investigation as a pre-condition of obtaining a site alteration permit. The court held that it was unfair for the homeowner to bear more than her fair share of the costs associated with providing a public benefit, such as collecting and preserving artifacts on the site, without a Ministerial order to that effect.
It remains open for the Minister of Forests to order a property owner to conduct and pay for heritage inspections and investigations. Such orders are more commonly made in large resource management projects such as forestry cases,8 oil and gas,9 or other infrastructure projects.10 They are rarely made against individual homeowners, and the writer has located only one such Ministerial order in what appears to have been a case where the owner conducted unauthorized work that damaged archaeological findings.11
The Province continues to require heritage investigation permits and site alteration permits to be obtained under the provisions of the Heritage Conservation Act, and reports be provided regarding any findings.
Not every homeowner can afford to take on the Province in arbitration or the Courts. A recent CBC News article12 highlights the situation in which a family has found themselves after purchasing a 79-acre property in Soda Creek, north of Williams Lake, intending to build a farm and event venue. The family says it had no disclosure of any archaeological issues at the time of the purchase or when applying for permits for a water well and septic tank. Interestingly, the responsible regional district also had no record of any archaeological sites on the property and issued a building permit. Only the family’s application for a BC Hydro connection raised a concern about the archaeologically sensitive nature of the land, as BC Hydro maintains its own mapping systems, which include locations of potential archaeological significance.13 The family is now stuck, unable to afford the costs of archaeological investigations necessary to obtain a site alteration permit, without which they cannot do any of their planned work to build a farm and event venue, and left without any compensation for the impact on their property and future plans.
In January 2023, the BC provincial government announced14 the creation of a one-stop-shop approach to provincial permitting to help speed up approvals and construction of new homes. This approach unifies processes under several different ministries, including riparian area approvals, water licenses, transportation approvals, road rezonings, contaminated sites, and requirements for heritage or archaeology inspections. Priority is to be given to Indigenous-led projects, BC Housing applications, and multiple-unit applications. It remains to be seen whether this will impact the availability of archaeological site information or the cost of performing the necessary archaeological investigations and obtaining the required Heritage Conservation Act permits.
When working with buyers intending to develop or redevelop a property, licensees should act within their area of expertise and recommend other professionals to assist buyers with conducting necessary investigations. If an archaeological site is known or suspected to be located on the property, sufficient time should be built into the purchase and sale process to allow for a search of the Archaeology Branch database, and/or the retainer of an archaeologist.
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