Heritage Conservation Act #287
CATEGORY: Legally Speaking
TAGS: Heritage Conservation Act Heritage Sites
By Gerry Neely
Although legislation to protect and conserve heritage property in British Columbia has been in existence since 1925, its impact upon residential homeowners and small property owners has seemed remote. That changed in the Victoria area with newspaper reports of the problems experienced by a beachfront owner of property whose excavations for a planned addition to his home revealed broken clam shells, stone fragments and pieces of bone.
The significance for the owner was that the bits of stone, bone and shells were potential evidence of an archaeological site which would be protected under the provisions of the Heritage Conservation Act. Work stopped until an assessment was done by an archaeological consultant to determine whether there was physical evidence of earlier human settlement and whether it warranted protection under the Act.
The Heritage Conservation Act attempts to control alterations to sites, which might occur as a result of altering the land, by constructing an addition or installing a pool or pond, for example, to limit or minimize the damage or destruction of history in this province.
If there is no change in land use or no intention to enlarge existing structures which might require sub-surface excavations, then the Archaeology Branch of the Ministry of Small Business, Tourism and Culture, need not become involved.
If you intend to subdivide property, then, as part of the process of subdivision, the proposal for development may be referred to the Archaeology Branch to determine whether an archaeological assessment is recommended. There is no uniform practice amongst Ministries, Regional Districts and Municipalities as to whether a proposal for subdivision will be referred to the Archaeology Branch. The Ministry of Transportation and Highways and the Ministry of Employment and Investment regularly do so.
In addition, the Municipal Act gives Municipalities and Regional Districts the power to pass bylaws to withhold the issuance of building permits if they would result in an alteration to protected heritage property. Even in the absence of such a bylaw, an application for a building permit which affects the sub-surface may lead to your being referred, for archaeological advice, to Municipalities or Regional Districts which may have information indicating that your property is in an archaeologically sensitive area or is a site.
Maps containing site information have been made available by the Branch to the Municipalities and Regional Districts in British Columbia. How useful this information will be within the local area may depend upon the compatibility of the computer systems used by the Municipalities and Regional Districts, with the systems used by the Branch.
While there is no legislation governing the profession of archaeological consultants, the Archaeology Branch has a list of the qualifications one should look for1 and an association has been created which lists a number of consultants throughout the province.2 Local colleges and universities may give you the names of consultants who work in the area. In outlying areas, the Ministry of Forests may provide the same information since the Ministry includes archaeological overviews and impact assessments in its planning.
Depending upon the circumstances, the cost may include a search, assessment and the cataloguing and analysis of material taken from the site, as well as recommendations of archaeological impact studies to the Archaeology Branch, which has the final say in what is to be done. If there is an unavoidable loss of heritage resources as a result of a development, then the owner may be asked to pay compensation in-kind or in cash.
The Archaeology Branch recommends obtaining advice and directions as to how to proceed to minimize the impact on the resource, the owner and the developer of the archaeological values of the site.
(Next Column – How and where to search and licensees’ duties)
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