Heritage Conservation Act (continued) #288

By Gerry Neely
B.A., LL.B.

As discussed in the previous column, early planning may reduce the overall costs. For example, with early advice, an owner may be able to change his or her plans before an excavation disturbs the artifacts within the site, to avoid the higher remedial cost of screening and salvaging the artifacts from disturbed soil.

The source information for the location of known sites is found in the provincial heritage register which is maintained in Victoria. It lists approximately 22,000 archaeological sites to which 800 to 1,000 new sites are added annually.

That may sound forbidding but, in 1997/1998, the Archaeology Branch of the Ministry of Small Business, Tourism and Culture reviewed 2,988 small-scale developments, some involving property subdivision or residential development which were referred to the Branch by local governments or highways. Of this number, only about 10 per cent required impact assessments by archaeological consultants.

A search can be requested at the Branch office in Victoria,¹ either by fax, in person or through an agent. The Branch receives upwards of 800 information requests per year and, with only two persons available to respond to these requests, one should expect 5 to 15 days of processing time and not count on a response at the low of this scale.

The files are not available to everyone. Firstly, one must have sufficient archaeological knowledge to be given access to the register and to be able to interpret the information found in the books. That information may include the site plan, sketch, scale of the survey of the land which disclosed the site, who might have conducted the survey, the time-frame within which it was done and other information, most of which would probably be indecipherable to the average person.

Secondly, the Branch has a responsibility to protect sites from looting and vandalism. Therefore, the application for a search requires the individual to state the reason why the site information is required and the third parties who will have access to the information. This information cannot be shared with anyone whose name does not appear on the Date of Request Form without the permission of the Archaeological Branch.

Charges of a consultant are generally based on an hourly rate and the cost of a search for the site on a small lot may be as low as $20 to $30.

The Heritage Conservation Act provides for fines of up to $50,000 for an individual and $1,000,000 for a corporation, upon conviction for violation of the Act.

The significance for licensees is that they may have a duty to first determine whether there are archaeologically sensitive areas within the community in which they work, and whether a search for archaeological sites may be necessary information for a seller or a buyer. A very, very general statement is that areas that our forefathers found attractive for settlement were also likely to have been attractive to the Aboriginal people who were here before them.

In these circumstances, the licensee’s duty may be comparable to the duty of the listing agent referred to in Column #129. The Column discussed a decision involving a termite-ridden house in an area of Toronto in which a termite infestation had started a few years earlier. The judge concluded that the listing agent’s duty was to know of the termite infestation in the area and to instruct his sales staff concerning important trends in the area. The failure to do this was a breach of the standard required of the listing agent. It is unlikely that the salesperson’s duty would be found to be any less.

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Columns #266 and #267 in 1997 referred to a Victoria case and a Court of Appeal decision which confirmed that a commission trust between an independent contractor/salesperson and agent was valid, giving the salesperson priority over the claims of unsecured creditors of the agent. It left unanswered the question of whether the commission trust had to be registered under the Personal Property Security Act. The subsequent decision of the Supreme Court that the trust need not be registered, which was appealed, will not proceed because of a settlement reached between the receiver and the salesperson, Ms. Turnbull. This leaves the Supreme Court decision as the law with respect to this issue.

1.

Archaeology Branch, Ministry of Small Business, Tourism and Culture, Phone (250) 356-0882; Fax (250) 387-4420.

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