Real estate can lead to hair raising adventures, but no sane developer wants to be Indiana Jones. Discovering an interesting artifact in BC leads not to fame and riches, but to a statutory and regulatory world that starts with the Heritage Conservation Act.

What is the Heritage Conservation Act? Despite the possibility of stop work orders, jail time and large fines under the Act, there is not much awareness of this rarely used heritage sites legislation. However, if recent headlines are any indication, this is likely to change. Alleged violations of heritage sites legislation have been well-publicized of late, with developments at Poets Cove and Bear Mountain making the news in recent months.

Poets Cove Resort and Spa is located on Pender Island. It is alleged that in late 2002 and early 2003, the developer of Poets Cove illegally excavated and removed archaeological deposits containing ancient human remains and artifacts from a recorded archaeological site. In the years that followed, the Hul’qumi’num Treaty Group asked the government to enforce the Heritage Conservation Act against the Resort. Poets Cove has subsequently been charged with unlawfully damaging a burial place that has historical or archaeological value, as well as excavating a site which contained materials or other physical evidence of human habitation or use before 1846. The Hul’qumi’num Treaty Group hopes that these charges send a message to people to conduct due diligence and to be aware of their accountability under the Heritage Conservation Act to protect ancient First Nation heritage places and burial grounds.

Bear Mountain, located just outside of Victoria, may be headed down a similar road to that of Poets Cove. First Nations artifacts were found at the Bear Mountain development during an archaeological assessment ordered by the provincial government’s Archaeology Branch and paid for by Bear Mountain. Bear Mountain is refraining from commenting until the archaeological assessment has been completed. Meanwhile, the Songhees Band is seeking advice from legal counsel and is considering pressing charges under the Act.

The Heritage Conservation Act is administered by the Ministry of Tourism, Sport and the Arts. The purpose of the Act is to encourage and facilitate the protection and conservation of heritage property in British Columbia. Certain types of archaeological sites are protected, including burial sites, aboriginal rock paintings or carvings, sites predating 1846, wrecked ships, wrecked planes, and sites specifically designated as being protected by the Provincial government. In accordance with the Act, these archaeological sites may not be destroyed, excavated or altered without a permit issued by the Minister.

Under the Act, the Provincial government is able to designate land as a Provincial heritage site. A heritage site is land, including land covered by water, that has historical, cultural, aesthetic, scientific or educational worth or usefulness to British Columbia, a community or an aboriginal people. Before the designation can be made, the Act sets out a procedure for designation that involves notice being given to all persons having a registered interest in the site according to Land Title Office records. A person or party served with notice of a proposed designation has 30 days to object to the designation. If designating land as a Provincial heritage site causes a reduction in the market value of the designated property, the British Columbia government must compensate the owner if the owner applies for compensation within one year of the designation. The amount of compensation is determined by agreement or binding arbitration under the Commercial Arbitration Act.

What land is protected? In accordance with the Act, a person or party is prohibited from damaging, desecrating or altering a Provincial heritage site without a permit or order issued by the Minister. Furthermore, narrower restrictions apply to undesignated heritage sites, with the Act requiring a person to obtain a permit before they:

1. damage, desecrate or alter a burial place with historical or archaeological value;

2. damage, alter, cover of move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;

3. damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846; or

4. damage or alter a heritage wreck or remove any object from a heritage wreck.

In the event that a development is undertaken and something of potential archaeological significance is found, the shovels and machinery must stop. Once a site is discovered, one cannot proceed without a permit and anyone that proceeds knowingly without one faces potential fines and jail time.

The Act empowers the Minister to order a heritage inspection or heritage investigation where, in the Minister’s opinion, land may contain a protected heritage site, may be subject to subdivision, may be subject to alteration by natural human causes, or may be subject to transfer from government ownership. If an order for a heritage inspection or heritage investigation is made as a result of a proposal for resource extraction or harvesting, subdivision, transfer of government owned property, change in use or development of land, the Minister may require the proponent to undertake or pay for the inspection or investigation. Furthermore, if the Minister believes that a site or property may be at risk, the Minister may issue a stop work order that prohibits any alteration of the property for a period of up to 120 days. As a result, a person or party trying to develop a protected heritage site may face expense and delay associated with the completion of heritage studies.

The Act provides substantial penalties for destruction or unauthorized disturbance of archaeological sites. Individuals convicted of offences are liable for fines of up to $50,000 or imprisonment for up to 2 years or both, while corporations may face fines of up to $1,000,000.

Before moving forward with any development – especially outside of an urban area -- heritage issues should be addressed, preferably prior to acquisition of the site. At a minimum, the purchase contract should contain appropriate representations and warranties from the vendor and conditions permitting the purchaser to satisfy itself through searches and inspections.

A review of notations on the title of the land at the Land Title Office should always be done, although it is important to understand that such a review cannot be seen as being conclusive of whether designation of land as a Provincial heritage site has been made. It is also important to contact the local government – municipalities and regional district offices can often provide information on the locations of known archaeological sites within their jurisdiction.

A British Columbia Archaeological Site Data Request Form should also be submitted to the Archaeology Branch. The Provincial heritage registry currently has more than 23,000 records of sites or objects that would fall into the category of "archaeological site", and the Archaeology Branch may be able to tell you whether a known archaeological site is on your property.

Ultimately, the Archaeology Branch says that its role is not to prohibit or impede land use development, but rather to assist the development industry, the Province, regional authorities, and municipalities in making decisions to ensure rational land use and development. But time is money, and even a 120 day stop work order can be lethal to a project.

In addition to such passive searches, inspecting the property is advisable. There are a growing number of consultants who can be hired to inspect the site for clues, by way of completion of an archaeological overview, an archaeological inventory study, or an archaeological impact assessment, all as described under the heading "Archaeological Impact Assessment and Review Process" in the British Columbia Archaeological Resource Management Handbook. The level of inspection that should be undertaken can be determined through consultation with the Branch.

And, for the more adventurous, direct discussions with local First Nations may be advisable. While such contact may risk opening a political can of worms, it may be the best way to determine whether an issue already exists. In addition, if the site in question includes Crown lands or is in any way in the public realm, a purchaser and potential developer must recognize the developing body of obligations to aboriginal peoples, known as the Duty of Consultation.

Indiana Jones managed to fight off venomous snakes in the Temple of Doom with his fedora and bull whip. But he would have been better prepared had he known they were there in the first place.

- Darren Donnelly   

(with research from Kyle Wilson, Articled Student)