Kinds of Legislation

For most kinds of archaeological questions, the legislative backdrop is relatively limited. There are only a few statutes (on heritage and environmental assessment) which answer virtually all the legal questions that could arise. The one dramatic exception is that of human remains. Any activity, at a location where human remains are found or even suspected, is both legally complex and politically controversial.

This analysis will identify the applicable rules. It has been pointed out¹² that "in some cases, for example with respect to burial disposition, some legal regulations appear to be in conflict with one another.... Inconsistent procedures for reporting, identifying, removing, preserving, and disposing of archaeological burial remains have often resulted." Various provincial authorities responsible for archaeology have therefore been developing protocols to assure consistency in operation between police, archaeologists, coroners, public health officials, etc. — but this is not always the case. In short, there are variations from one part of Canada to another.

Federal lands tend to be in a distinct category, which will be described. Special rules may also apply if the archaeological activity or discovery is offshore (or in navigable waters),¹³ or if it is on land subject to a land claims agreement; although those are outside the terms of reference of this analysis, decision makers should be aware of this possibility.

Major Federal Statutes Applicable To Archaeology

Canadian Environmental Assessment Act
Cultural Property Export and Import Act

Major Provincial/Territorial Archaeological Statutes

Newfoundland and Labrador / Historic Resources Act
Prince Edward Island / Archaeological Sites Protection Act
Nova Scotia / Special Places Protection Act
New Brunswick / Historic Sites Protection Act
Quebec / Cultural Property Act
Ontario / Ontario Heritage Act
Manitoba / Heritage Resources Act
Saskatchewan / Heritage Property Act
Alberta / Historical Resources Act
British Columbia / Heritage Conservation Act
Northwest Territories / Archaeological Sites Regulations
Yukon / Historic Resources Act
Nunavut (Temporarily the same as the Northwest Territories, subject to section 33.5.1 of the Nunavut
Land Claims Agreement calling for new legislation.¹⁴)
All provincial/territorial statutory references are to the above, unless otherwise specified.