The need to overhaul and…

The need to overhaul and update the archaeology act is needed :

Unfortunately this Act totally fails to address right of private property ownership - especially lands owned fee simple - and the alternative land ownership, which are Crown Lands.

18 million acres of private owned land in Ontario , are estimated to have a pre confederation “Crown Grant “ as root of title. The Ministry of Natural resources and forestry can affirm this as they are the holders of all Crown Grant records in the Province.

Pre confederation, The Crown entered into treaties with various indigenous bands and through these treaties the Crown took possession and the tribal entities gave up their right to any assets left on these properties upon the transfer to ownership to the Crown

In post confederation treaties the rights to these artifacts may be contained , however in no pre-confederation treaty were any such right of ownership retained by the hands in said treaties.

The Crown subsequently transferred parcels of these lands to private ownership buy use of Crown Grants and in these grants the Crown transferred any authority or ownership it had over to the private ownership , registered on title , subject only to ongoing certain reservations for the benefit of the Crown . Every one of these grant Reservation's, contained in pre-confederation grants, were rendered mute by the Nullum Tempus Act of 1755 which placed a 60 year life span on these reservations.

The Crown grant’s gave everything to the property owner, who’s ownership is recognized as being “Fee simple absolute” in ownership

Now many property owners of these pre confederation grant lands , willingly or by ignorance of their rights, by agreements with municipal and/or provincial authorities, have subjugated themselves to regulation by the Province. In these cases the Province might claim right to legislate.

However, For the estimated 11 million acres of privately owned lands remaining, the ownership rights have not been subjugated to the Province. As such on these lands the Archeological Act enters into interference and conflict with the “fee simple” and Crown Grant based title rights , which includes ownership of any archaeological Artifacts on the property.

Quite simply, any Act that requires a property owner to turn over artifacts which are on his property, without fair compensation, is an act of expropriation without fair compensation as defined in the Expropriation Act of Ontario.

Neither the Crown or in this case the Province of Ontario is owner of these artifacts and as such has no authority by legislation to deem these as property of another. In this case an indigenous party.

This leads to the second problem in the current act which again applies to an owners right.

Any action to usurp , take or otherwise cause an expense to a property owner in the unpaid use of his private property, in the name of the common good, must place the right of the property owner above that of the non owner.

As such this act must clearly spell out that any archeological studies,” in form of but not limited to examinations/studies/digs, on private property, must be at the expense of the Province and not the private property owner. Further it must state no private property owner can be forced to conduct said works requiring him to pay for the works without complete compensation from the Province for said costs and accrued interest to conduct same.

This right to compensation is , based on the right of a property owner to dispose of his property in way he sees fit. As such his right to bulldoze and build upon being affected by legislation claim ownership over assets he the property owner owns but has no interest in preserving, is an act of expropriation.

Furthermore, when it comes to private property with a pre-confederation grant as root of title: any legislation that affects the landowners continuing use of the land, for example a demand to conduct a time consuming study and excavations, the legislation needs to clearly state the land owner is owed fair compensation for the inconvenience and any additional time incurred costs he incurs as caused by these discovery/recovery activities.

Archeological preservation of artifacts is important but so too it is important that the Province in its legislation acknowledge and respect the rights of private property ownership.

With the inclusion of the these measures into a section regarding private property the Province can clearly establish the way the act and private property co-exist

Respective to the act and Crown owned lands , the province has the right of ownership, as such it can decide what rules and regulations govern their own ownership activities .

But the act needs a section specific to private property.

The Conservations authority act states, for private property CA’s have no authority on these lands unless they enter into an agreement with the property owner, they lease the land or they expropriate the land, failing which a conservation authority has no authority on that private land

This could be incorporated in this act, but the right to demand by any municipal or provincial authority to comply with heritage /archeological activity must recognize the property owners rights as indicated above.

Thank you for allowing this submission

Don Johnson
On behalf of myself and on behalf as :
President
Hamilton/Halton Landowner Association
Teamjohn@idirect.com