the Heritage Conservation Act

Heritage Conservation act BC info and my data request.

This article was published by the BCREA and is worth reading if you are looking at buying on Salt Spring. The key is that these sites are not registered on the title. A simple title search will not guarantee there are no archaeological sites on the property.

DEALING WITH HERITAGE SITES
How 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 the 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 a 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 be 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 1970s 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 for 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 the 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.
“Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information.

Here is a sample of what a data request

Data Request for Salt Spring Island

On behalf of all my future clients on Salt Spring Island, I have requested all the site info for all the islands of Salt Spring. Here are the screenshots of my request.

First Request

Please note the date of March 26. Below is my first request for all of the data for Salt Spring.

From:  
Sent: Thursday, March 26, 2015 9:46 AM
To: ARCWEB Feedback FLNR:EX
Subject: Data Request: Scott Simmons –

This is the first response almost took four months

From: “Ruskin, Jessica FLNR:EX” <>
To: Scott Simmons
Cc: “Cooper, Diana FLNR:EX” <>
Sent: Monday, July 13, 2015 3:12 PM
Subject: RE: Data Request: Scott Simmons –

Good afternoon Scott;

Thank you for submitting a data request for information concerning all of the archaeological sites on Saltspring Island.

Unfortunately, I cannot provide archaeological information for the entire island.  This does not mean we cannot release archaeological data to you, just that the format will need to be a little more restricted.  I can supply archaeological site data for specific properties that are listed for sale.

I’ve attached a copy of our Access to Information Policy for your reference.

Please let me know if you have any questions.

Kind regards,

Jessica Ruskin, MSc | Archaeologist/Heritage Resource Specialist
Archaeology Branch | Ministry of Forests, Lands and Natural Resource Operations

Phone:   250-953-3348 | Fax:  250-953-3340 |e-mail:

Unit 3 – 1250 Quadra Street, Victoria BC V8W 2K7 | PO Box 9816 Stn Prov Govt, Victoria, BC V8W 9W3

Visit our website at: http://www.for.gov.bc.ca/archaeology/index.htm

My response back

From: Scott Simmons  
Sent: Monday, July 13, 2015 3:28 PM
To: Ruskin, Jessica FLNR:EX
Cc: Cooper, Diana FLNR:EX
Subject: Re: Data Request: Scott Simmons –

To Jessica Ruskin, MSc

Thank you for getting back to me in such a short time of less than four months.  Why can you not provide me with the archaeological info for Salt Spring? There can not be that many places.  What will this search cost and how long will it take to get this information?  It is critical that as a realtor of Salt Spring I be given this information so that I can direct my clients not to buy and build on what could be another Grace islet.   Waiting for a place to be listed is too late in the game.  Some places sell within an hour or so of being listed.

Please take this email as a legal notice and be sure it will be used in any court case against me for not doing my fiduciary duty to protect my clients from claims on their properties.

Sincerely,

Scott Simmons

250.538.8316

Gov response

rom: “Batten, Justine FLNR:EX” 
To: “‘Scott Simmons 
Cc: “Acheson, Steven FLNR:EX” <>; “Ruskin, Jessica FLNR:EX” <>
Sent: Monday, July 13, 2015 3:53 PM
Subject: FW: Data Request: Scott Simmons –

We appreciate the nature of your request for information Mr. Simmons but, as you were advised by Ms. Ruskin, archaeological information is not released on the terms you have specified.

All realtors in the province operate under the same parameters:  when they receive notice that a house may be listed  or there is a listed property that their client is interested in, they seek information from our office as to the status of that particular property.   If the offer date is proximate, you can call our office directly as we will provide you with the information immediately.  Our inability to provide you with an area wide list does not relate to the number of the sites but rather that you have no identifiable interest in receiving this information for each property on Salt Spring Island.

To be clear, we welcome your request for information on a property by property basis and trust this will provide your clients with the information they require.  Please feel free to contact me directly if you have additional questions in this matter.

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 

Telephone:  250 953-3355
Fax:            250 953-3340
email:         

PPlease consider the environment before printing this e-mail

From: Ruskin, Jessica FLNR:EX
Sent: Monday, July 13, 2015 3:32 PM
To: Acheson, Steven FLNR:EX; Batten, Justine FLNR:EX
Subject: FW: Data Request: Scott Simmons –

Jessica Ruskin, MSc | Archaeologist/Heritage Resource Specialist
Archaeology Branch | Ministry of Forests, Lands and Natural Resource Operations

Phone:   250-953-3348 | Fax:  250-953-3340 |e-mail:

Unit 3 – 1250 Quadra Street, Victoria BC V8W 2K7 | PO Box 9816 Stn Prov Govt, Victoria, BC V8W 9W3

Visit our website at: http://www.for.gov.bc.ca/archaeology/index.htm

My reply

From: Scott Simmons
Sent: Monday, July 13, 2015 6:02 PM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons –

Hi Justine Batten as per the Heritage conservation act you operate a register and under section (3) below there are only three reasons you can refuse to disclose information.  The act says nothing about an “identifiable interest”.

Provincial heritage register

(3) Despite the Freedom of Information and Protection of Privacy Act, the minister may refuse to disclose information in the Provincial heritage register and other information obtained in the administration of this Act or the Museum Actif any of the following apply:

(a) disclosure of the information could, in the opinion of the minister, result in damage to or interfere with the conservation of a heritage site or heritage object;

(b) disclosure of the information would violate an agreement made under section 4;

(c) anthropological information that is of traditional social, spiritual or other cultural importance to a living community

(i)   was obtained under conditions of confidentiality, or

(ii)   is confidential at the request of representatives of the community whose heritage is represented by the information.

Please send me an email stating how long it will take you to fulfill my request and the cost of this.  Thank you.

Sincerely,

Scott Simmons

250.538.8316

Gov reply

From: “Batten, Justine FLNR:EX” 
To: ‘Scott Simmons’ <>
Cc: “Ruskin, Jessica FLNR:EX”  
Sent: Tuesday, July 14, 2015 7:40 AM
Subject: RE: Data Request: Scott Simmons –

Good morning Mr. Simmons.  Why we restrict access to those with an interest in the land being queried is set out in section 3(a) below.  How we restrict it is to limit the release of information to those who have a specific need to know.   If you check with others in your industry you will find this is the standard applied to all who query the registry.

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 

Telephone:  250 953-3355
Fax:            250 953-3340
email:         

PPlease consider the environment before printing this e-mail

My reply

From: Scott Simmons 
Sent: Tuesday, July 14, 2015 7:57 AM
To: Batten, Justine FLNR:EX
Cc: Ruskin, Jessica FLNR:EX
Subject: Re: Data Request: Scott Simmons –

Good Morning Justine Batten

I really do not care what other Realtors do or do not do or have not done that is totally irrelevant and would never stand up in court as doing one fiduciary duty to one’s client.  What I care about is having information for my clients on Salt Spring Island.  Your interpretation of the law seems very odd.  How can you possibly claim 3(a) have I given you any intent to damage to or interfere? When and or how can the simple knowledge of something be taken as intent to damage or interfere.  What you are basically saying is if I find out where the places are I intend to go out and damage and or interfere which is not my intent.

Your obtuse action of interference with my request is intolerable and would not stand up in court.  It all comes down to the act and you are overstepping the act that mandates your branch.

If I come to Victoria in person can I go through the registry myself? As per the act.  Would I have complete access?

Sincerely,

Scott Simmons

250.538.8316

Gov reply

From: “Batten, Justine FLNR:EX” 
To: ‘Scott Simmons’ <>
Cc: “Ruskin, Jessica FLNR:EX” 
Sent: Tuesday, July 14, 2015 8:11 AM
Subject: RE: Data Request: Scott Simmons –

There is no physical registry per se Mr. Simmons but rather an electronic data base of all known sites in the province.   The restrictions, as described to you, apply both with respect to our mailing you the information and to any on site review of the registry itself.

If we were to provide you with a list of all properties containing all known archaeological sites on Salt Spring, this could very well prove misleading to your clients.  Such a listing would not tell you the degree of impact on the use of the property as this requires knowledge of the type of site, when it was recorded and how well it was recorded in addition to what percentage of the property is impacted by the site.  Furthermore, any listing we provided to you now would become outdated as new sites are added over time.

It is also important to note that the absence of a site may not be indicative of the fact that no site is present.  This absence may merely mean that particular piece of property has not been examined by an archaeologist and tested for the presence of a site.  Releasing information on all known sites is also an infringement of the privacy of the property owners of those lands containing the site.   This infringement can be justified in the face of a possible sale or listing but not as a shopping list for a commercial enterprise.

We will not be varying our policy in this instance.  Our office can provide your clients with the requisite information well in advance of them making any binding commitment to purchase a property without infringing the rights of other property owners.

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 

Telephone:  250 953-3355
Fax:            250 953-3340
email:         

PPlease consider the environment before printing this e-mail

My Reply

From: Scott Simmons
Sent: Tuesday, July 14, 2015 8:31 AM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons –

So basically you are disregarding this section of the act;

(2) Subject to subsections (3) and (4), information in the Provincial heritage register must be available for inspection by any person during regular business hours.

Can I book in an appointment on Thursday at 10am to view the registry?

Please stop putting words in my mouth saying I will be misleading my clients.  That is not for you to decide.  If I mislead my clients I will be accountable to my clients and I do understand your concerns but do not see how this gives you any right to block my simple request. 

Please follow the act and grant me full access to the registry in person as per the law on Thursday as requested.  As the law says the register MUST be available.  And as I have stated my intent is not to do damage and or interfere and the presumption of innocence is an important part of the common law which is the foundation of this act.

Sincerely,

Scott Simmons

250.538.8316

Gov reply

From: “Batten, Justine FLNR:EX” 
To: ‘Scott Simmons’ <>
Sent: Tuesday, July 14, 2015 8:37 AM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

Mr. Simmons, section 3(2) as you quote below states explicitly that its operation is subject to ss 3 and 4.  I have already explained the application of section 3(3)(a) and subsection 4 states “the inspection of information in the Provincial heritage register is subject to reasonable conditions the minister may impose.”

The database (register) will not be available for your viewing as explained in our earlier emails.

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 

Telephone:  250 953-3355
Fax:            250 953-3340
email:         

PPlease consider the environment before printing this e-mail

My reply

From: Scott Simmons 
Sent: Tuesday, July 14, 2015 8:45 AM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons –

Can you send me a copy of the other conditions the minister has imposed?

Sincerely,

Scott Simmons

250.538.8316

Gov reply

From: “Batten, Justine FLNR:EX”
To: ‘Scott Simmons’ <>
Sent: Tuesday, July 14, 2015 9:13 AM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

The attached document sets out the terms and conditions of access.  This and related information can be found on our website https://www.for.gov.bc.ca/archaeology/index.htm

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 

Telephone:  250 953-3355
Fax:            250 953-3340
email:         

PPlease consider the environment before printing this e-mail

my Reply

From: Scott Simmons 
Sent: Tuesday, July 14, 2015 9:39 AM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons –

Just one more question.

It states in the Data Terms and Conditions part 2.  …but not to withhold if from those who have a need to know and who and an interest in a site or sites such as: planners, realtors,… How can you contravene your own Data terms and conditions?

As I have stated I have an interest in ALL of Salt Spring Island.  The act does not specify interest.   I have started my interest that should suffice.  You are withholding and blocking me from getting archaeological information contrary to the Heritage Conservation Act and your own Data terms and conditions.

At this point, I’m going to go to my MLA and request the Minister grants me access to the information I have requested.  Thank you for your time and correspondence on this issue.  It is much appreciated.

Sincerely,

Scott Simmons

Last gov double talk

As mentioned previously, we do make the registry information available to realtors.  When they are listing a property or have purchasers considering the same realtors contact our office to determine if there are any known archaeological interests associated with the property.   This service is available to all realtors in the province.

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 

Telephone:  250 953-3355
Fax:            250 953-3340
email:         

PPlease consider the environment before printing this e-mail

As stated at the end of this thread above I will send a letter to my MLA and request the minister send me all the documents that pertain to Salt Spring. Update MLS never returned any info and it now takes 4-6 weeks to get any info from the gov. If there is a dispute about a property I would be more than happy to provide the emails above.

Cheers,

Scott & June Simmons
The Salt Spring Team

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