Legally Speaking - March 2015 (476)
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Legally Speaking (476, March 2015)


Number 476, March 2015


Jennifer CleeHow many licensees are aware that the Heritage Conservation Act (HCA),1 which replaced the Archeological and Historic Sites Protection Act (the Act) in 1977, extends the legislated protection of archeological sites on Crown lands, to archeological sites on private property, without requiring formal designation or notice being registered on title? An archeological site by definition is a location where there is evidence of past human activity, and may include shell middens, remains of ancient houses, campsites, ancient stone carvings or other heritage objects.

Land that has been designated as heritage property is clearly protected under the HCA, but so is land falling within the definition of heritage site. A heritage site is any land, whether designated or not, that has "heritage value" to British Columbia, a community or an aboriginal people. This even includes land covered by water. Heritage value means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object. The consequences of licensees not being aware of the protection afforded to archeologically sensitive land can by significant. Consider the following example:

A buyer locates a beautiful piece of land listed for sale in Northern BC adjacent to a pristine lake. The land appears perfectly suitable for the buyer's dream of constructing a multi-unit residential property. Unbeknownst to the buyer, his licensee, the seller and his licensee, archeological research conducted in the 1970's under the Act generated a report identifying the property as an archeological site. The seller, who had inherited the property, never received the report, although he had found artifacts on the property. The title search does not reveal a notice that the property is designated heritage property.

The buyer decides to make an offer to buy the property, subject to the possibility of rezoning the property to accommodate his development plans. The buyer contacts the local authority, which provides verbal assurance that the buyer's rezoning application will be favourably received. The buyer removes his subject condition based upon that assurance and completes the purchase.

Subsequently, in the course of seeking approval to rezone the property, the buyer learns that the property is protected by the HCA. The buyer then spends thousands of dollars obtaining an archeological impact assessment required for his application for a site alteration permit and based upon the report, no permit is issued and the rezoning is not approved.

The result? The buyer is out of pocket not only for the costs associated with the archeological impact assessment and rezoning application, but also the cost of the land, legal fees and other development costs. The value of the land may also have diminished as a result of the development restrictions.

The outcome? Likely a lawsuit against:

a) The buyer's licensee and his/her brokerage for failing to contact, or recommend that the buyer contact, the Archeological Branch;2
b) The seller's licensee and his/her brokerage for not investigating and ascertaining whether the property was protected under the HCA;
c) The seller for not disclosing that the property had archeological significance; and/or
d) The local authority for not contacting the Archeological Branch before giving informal approval to the developer's zoning application.

Licensees should be familiar with archeologically sensitive areas in the communities in which they work and be aware of the silent arm of the HCA and its effect on the use, development and/or value of any property it protects. To avoid claims or professional conduct complaints relating to archeological sites, licensees should:

  • Check to see if property is listed on municipal or provincial heritage registers;
  • Contact the Archeological Branch or submit a BC Archeological Site Data Request Form3 to the Branch to determine if the property is protected; or
  • Shift that responsibility to their client (in writing).

Licensees should also review the Real Estate Council of British Columbia's Professional Standards Manual section on heritage properties4 and become familiar with the subject clauses set out therein.

Jennifer Clee
B.A., LL.B.

  1. R.S.B.C. 1996, c. 187.
  2. Ministry of Forest, Lands and Natural Resource Operations,
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