Archaeology and the law

It is strongly recommended that qualified advice be obtained on meeting the obligations spelled out in the various federal, provincial and territorial legislation, policies and directives and in final land claim agreements. For more information on the apropriate authorities and legislation dealing with this subject, consult Unearthing the Law: Archaeological Legislation on Lands in Canada.

Parks Canada is bound by its mandate and policies to protect and preserve archaeological resources found on Parks Canada lands — whether the resources are on the surface of the ground, buried in the earth or submerged. The Parks Canada Agency Act (1998) lists archaeology in its heritage protection programs. The Act further states that “the Agency is 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.” As well, the Parks Canada Agency is the federal government expert on archaeological works that take place on federal lands. The Agency’s archaeological experts provide advice, tools and information to other federal land managers on archaeology and environmental assessment to help implement the Government of Canada’s Archaeological Heritage Policy Framework (1990)..

Other federal government departments are subject to different laws, policies and ministerial directives that pertain to federal lands. Legally, a project that would prompt an environmental assessment under the Canadian Environmental Assessment Act may trigger a requirement to assess the site in question for archaeological resources.

Provincial and territorial governments have all created one or more laws that deal directly or indirectly with archaeology or archaeological resources under their jurisdiction. These laws require both governments and the private sector equally to plan for archaeology and to protect archaeological resources, whether they are discovered by accident or as part of a purposeful research effort. Each provincial and territorial government has established a process for obtaining permits for archaeological research and for the filing of reports on authorized excavations.

Accidental Discoveries

In the event of an accidental discovery of human remains, the law specifies that all activities must be halted, the area secured and the apropriate authorities (police and/or coroner) notified. The police and/or coroner, often working with an archaeologist or biological anthropologist, will determine whether the site is the scene of a crime or an archaeological site. If the site and human remains have medico-legal significance, they will fall under the jurisdiction of the police or coroner. If the site and remains are archaeological, they will, depending on where they are found, generally fall under legislation and policies concerning heritage, historic or archaeological resources, or the laws and policies that deal with burial sites and cemeteries.

Given the inherent spiritual significance and scientific and heritage value of human remains, special ethical considerations should be given to the protection of both the remains and the burial sites. Both must be treated with respect and, whenever possible and reasonable, the wishes of the next of kin, the genealogical descendents (if known) or the community with the closest historical or cultural association must be respected.

The laws are less explicit and often inconsistent in the case of accidental discoveries of archaeological objects and other archaeological resources that not associated with human remains. Ideally, if such a discovery occurs, all work that could potentially threaten the site should be halted, the site itself closed and secured and the responsible provincial, territorial or federal archaeological official notified. Where there is any doubt as to whether a find is an archaeological resource, it is best to obtain expert advice without delay.

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