Disclosure of Archaeological Findings: More Digging May Be Required #522

What concerns could a waterfront lot, a rural farm, and an older urban home all have in common? One possible answer is that each of these types of property could be subject to the provisions of the Heritage Conservation Act or a municipal bylaw respecting heritage value. Heritage concerns may affect the value of the property, its redevelopment potential, or even the ability of a new owner to make any renovations, repairs, or additions to the existing structures.

In the clearest circumstances where a property has been designated as a heritage site, an interested buyer can find an easily identifiable physical marker, such as a bronze heritage plaque (for example, there are more than 2,200 registered heritage buildings in the City of Vancouver alone). Additionally, a heritage designation is usually registered on title.

However, properties that have only been proposed for designation as heritage sites will bear no such plaque or marker. Further investigations should be made to determine the stage of the designation process and its effect on the property.

Many (but not all) municipalities maintain a separate heritage register, listing properties which have been identified as having “heritage value”.

Is a property that is not a designated heritage site, nor listed on a heritage register as having “heritage value,” but which has archaeological findings considered to have “heritage value” under the Heritage Conservation Act?

This was one of the issues raised in a recent Provincial Court case,¹ where a buyer alleged that the sellers of a bare lot where Aboriginal shell middens had been found should have answered yes to question 4.C in the Property Disclosure Statement:

Are you aware if the property, or any part of the property, is designated or proposed for designation as a “heritage site” or of “heritage value” under the Heritage Conservation Act or under municipal legislation?

The sellers had undertaken an archaeological study to determine the extent of shell middens found on the bare lot waterfront property, in order to establish a possible building envelope for obtaining a development permit for the eventual construction of a residence. Shell middens are concentrations of ancient edible mollusc shells and constitute evidence of ancient settlements such as Aboriginal villages or camp sites. The archaeological study concluded limited portions of the property had some archaeological value, and an archaeological expert would have to be retained to supervise the planning and construction of the residence.

The court held that while the wording of question 4.C could be clearer, the “archaeological value” of a property with shell middens can be a factor considered in determining the “heritage value” of that property. The court came to this conclusion by reviewing the definition of the term “heritage value” in the Heritage Conservation Act, which is:

"heritage value" means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object;

The court read the concept of “heritage value” into the specific protections offered by section 12 to 14 of the Heritage Conservation Act to sites with archaeological value, such as sites where shell middens are discovered.

However, the court found the sellers had focused only on the heritage site designation portion of question 4.C and had not turned their mind to whether “archaeological value” could imply “heritage value”. While the court held those terms must be related, and the answer to question 4.C was likely yes, the court found the sellers had answered the question honestly and to the best of their ability, which is all the Property Disclosure Statement required them to do. The court emphasized that a Property Disclosure Statement is not a warranty, and it was the buyer’s obligation to make further inquiries into the development potential of the property. The buyer’s claim failed.

The Real Estate Council of BC provides a suggested standard clause to be inserted into an offer to purchase a property that a buyer intends to redevelop, allowing the buyer sufficient time to investigate the potential effect of the Heritage Conservation Act on the use or development of the property. Such investigations may include searching title to the property, inquiring with the appropriate municipal department, reviewing Archaeology Branch records (which can take time to obtain), and reviewing any documents provided by the current owner of the property.

1.

Slade v. Demarchi, BC Provincial Court, Duncan Registry Small Claims Action No. C5228, November 7, 2019.

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