Background

One expert report for the federal government complained that the statutory definitions for the word "archaeology" in Canada were vague.¹⁵ International treaties¹⁶ and federal statutes are unhelpful in defining what archaeology is,¹⁷ and provincial statutes are inconsistent.

The Parks Canada Agency, however, provides a fairly specific definition.

Archaeology deals with the recovery and analysis of physical evidence from on or below the surface of the ground and underwater... An archaeological site is a surface vestige or the subsurface or submerged remains of human activity at which an understanding of these activities and of the management of these resources can be achieved through the employment of archaeological techniques...an archaeological artifact [is] an object, a component of an object, a fragment or shard of an object that was made or used by humans, a soil, botanical or other sample of archaeological interest.¹⁸

In practice, the consensus discernible throughout the various statutes is that archaeology deals with items that combine three features. Archaeological items usually:

• are found on or under the ground,
• pertain to human occupation and
• are old.

However, each of these features has distinctive connotations and exceptions in each province/territory. The following is a summary of how these definitions apply.

Objects Found On or Under the Ground (or Underwater)

On land, many have to be excavated to be retrieved.¹⁹ But, the laws of every government except one indicate that an archaeological object can be under or on the land.²⁰

Exceptions

• Alberta disqualifies items on or above the ground from being considered "archaeological resources" (although they can be protected under a separate ministerial order), but is the only government to do so.²¹
• In two provinces, some items found above ground are also considered "archaeological": Ontario and British Columbia recognize rock carvings (petroglyphs)²² - although it could be argued that these, like rock paintings, are otherwise covered by every province's legislation because they have become "part of" the rock face and hence part of the ground. British Columbia also recognizes carvings in trees ("culturally-modified trees").²³
• Another unique exception is in Nova Scotia law, where "archaeology" does not apply to finished metals and gems buried in the ground, because such items are in a separate legal category²⁴ called a "treasure trove." However, the treatment of research and discoveries, pertaining to treasure troves, is legally very similar: it must be preceded by a licence, finds must be reported, etc.

The Objects Are Old

One international treaty suggests that these items can be considered "antiquities" if they are 100 years old²⁵; a federal report suggested 75 years as the threshold.²⁶ Another federal regulation, the Canadian Cultural Property Export Control List, specifies²⁷ that although the threshold for most items of cultural property covered by the list is 50 years, the threshold for "an archaeological object" is 75 years.²⁸

With one exception, the provincial and territorial laws do not specify a threshold for how old an item must be before it can be considered "archaeological." Almost every law protects human remains (regardless of age), but is not precise about how old other artifacts must be.²⁹ They merely say that the object should have "archaeological," "prehistoric," "historic" or "heritage" interest - without defining what that means.³⁰ The exception is B.C.'s law, which has a three-pronged approach. Section 1 offers generalized (and somewhat vague) protection to all items of "heritage value," whereas section 13(2)(d) offers absolute protection to human artifacts predating 1846, and artifacts from other eras defined by regulation. Where it is uncertain whether the item so qualifies, it is protected under section 13(2)(g).

The Objects Relate to Humans, but...

Archaeology is usually defined as including items which are made by or used by humans — or even human remains. Does this exclude remains of prehistoric animals or plants (e.g., fossils, dinosaur bones, etc.)? What are the duties toward palaeontology (i.e., artifacts of prehistoric animals or plants)?

In legal practice, the distinction between archaeology and palaeontology is usually more apparent than real. Even if most statutes do not treat the words "archaeology" and "palaeontology" as synonymous, they nevertheless give them the same protection. That is the case explicitly under the federal laws.³¹ It is also explicit in the laws of Nova Scotia, Manitoba, Saskatchewan, Alberta and Yukon.³² It also appears to be the case implicitly in British Columbia and Prince Edward Island.³³ Newfoundland and Labrador's law also covers palaeontology, though somewhat differently.³⁴

That leaves Ontario, New Brunswick and the Northwest Territories where the subject is simply not mentioned,³⁵ and Quebec where palaeontology is specifically excluded from the law's treatment of archaeology.³⁶ From the standpoint of good practice, however, it appears that if a palaeontological discovery were made even in a province whose law was unclear on the subject, it would be prudent to treat it in much the same way as an archaeological discovery.