Heritage Hell
Welcome to the Real Estate Espresso podcast. I’m your host, Victor Menasce. Today, we’re reporting on a story previously covered by the British Broadcasting Corporation and Canada’s National Post. It discusses a Canadian farmer who wanted to build a house on his land and is now being forced to pay $400,000 for a government-mandated archaeological dig. If he does not comply, he could face jail time, as reported in the National Post.
Bruce Castle, 75 years old, had to get an archaeological assessment of his Ontario farmland when he decided to build a retirement home for himself and his wife over four years ago. During the assessment, archaeologists found fragments of stone believed to be indigenous artifacts. Castle could face massive fines or jail time, unless he pays to finish the assessment, which he claims amounts to $400,000.
Under the Ontario Heritage Act, archaeological assessments are divided into four stages, which are paid for by the property owner. If artifacts are found, the owner can face hefty fines for disturbing the site. In Ontario, only licensed archaeologists can disturb such sites knowingly, and it’s illegal for non-archaeologists to collect archaeological artifacts intentionally.
Castle hired an archaeologist to conduct the first stage of the assessment in 2020 and the second stage in 2021. During the dig, items including scrapes and projectile points were discovered. Castle claims the archaeology firm quoted him $130 an hour to analyze the artifacts.
The site was interpreted as a large area of ongoing temporary seasonal occupation by indigenous communities throughout the Middle Archaic period. This according to the stage two assessment shared with the newspaper. Hunting, hide processing, as well as the production and maintenance of tools and projectile points were thought to be the primary activities at the site.
On July 29th of this year, the Minister of Indigenous Affairs and the Minister of Citizenship and Multiculturalism, told Castle that proceeding with the next stage of the assessment was his only option for building on the land.
As I’m reading this story, it appears to me that the reporters have not properly reported this story, and so I decided to examine the actual Heritage Act. If a government agency designates any property unfit for its original intended purpose and allowed zoning, that equates to a condemnation, which contradicts basic property rights under British common law, which our legal system is based on.
I’m not a lawyer, but when I studied the text of the statute, I found that when a stop order is issued by the Minister, the person affected should be entitled to compensation for personal or business damages. I believe the property owner would have a legitimate claim under their title insurance policy as these types of unexpected findings, such as an ancient burial ground, are considered title defects. Overall, I don’t believe the owner has received proper legal advice and I believe this story sheds light on the complex issue of heritage legislation that exists throughout North America.
Real estate always comes with its risks, but property owners should be entitled to protection from these risks under the law. As you consider this, have an excellent rest of your day, go forge great things, and we’ll chat again tomorrow.
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