Only occasionally does this space turn its eye to fossils, but there’s been quite a bit of press this last week about the perceived lack of protection of fossil sites in British Columbia, some of which are alleged to be ground up for “kitty litter” (archive, etc). In that CBC report the Minister of Agriculture and Lands lists a whole variety of ways that fossil sites are, indeed, protected, in response to the general position of the paleontologists that there was no such legal protection. I believe this page summarizes the government’s position (which does indeed explicitly allow commercial exploitation in principle, though they are not currently taking kitty litter applications. The page is a virtual museum of weasel words and contradictory information and frankly, makes almost no coherent sense).
Anyhow, the most direct and obvious way that such sites are, in my opinion, already protected, or the way they could be: by the Heritage Conservation Act (HCA).
My support for this contention is threefold [edit: but see comment by APM below for a different and partially corrective view]:
1. Several dinosaur sites are already recorded with Borden numbers (HgRr-2 and HhRs-1, at least, plus the Puntledge river site). At least some of these are specifically designated by Ministerial order under Section 9 of the HCA – this is the case for some of the most impressive trackways in the Peace River. This results from the government specifically adding a fossil site to the Heritage Register. The Peace River examples have long been held to be one of the odd cases on the register – I don’t recall the others offhand but there were some fairly unusual things given Borden numbers over the years.
2. Within the last five years the Archaeology Branch has, on at least two occasions, issued Inspection Permits under the auspices of the Heritage Conservation Act to conduct solely palaeontological survey and impact assessment, in this case with reference to the Enbridge Gateway Pipeline Project in northern B.C. This arguably constitutes a de facto recognition that such sites are covered by the provisions of the HCA, including protection – or else why issue a permit? Indeed, the resultant permit report requires that the Archaeology Branch be closely involved in any impact assessments on fossils resulting from the pipeline (see excerpt below). The language used is essentially indistinguishable from archaeological monitoring protocols.
3. The language of the Act is very simple and explicit. The “Heritage” value that is being “Conserved” by the act is defined in Section 1 as “the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object”, and the language of Section 13 certainly allows for the inclusion of protection for fossil sites, and arguably now requires it. Indeed, the government agrees that, “Fossils qualify under the Heritage Conservation Act as items having “heritage value” because of their scientific and educational worth.” The AGF page asserts that they are only protected under the HCA if designated under Section 9, but unless they have a legal argument I would say this is based on past practice not on legal necessity.
Thus, since the language of the Act encompasses fossils; since the Archaeology Branch has issued permits to investigate fossils; and since the Archaeology Branch already keeps at least some fossil sites on its Heritage Register, there would appear to be a recognition that fossil sites are heritage sites in the legal sense of the HCA.
So, I am obviously not a lawyer but it does seem to me that armed with Points 1 to 3 I could put up a pretty good case that precedents had been set, and that the precedents were consistent with the intention and purpose of the act as understood through the language of its definitions. Further, as with archaeological sites, perhaps they must be protected whether recorded or not, and regardless of their intrinsic significance. (The simplest flake or cache pit is afforded the same protection under the law as the most complex site, although permits to seriously alter them may be easier to come by!) [edit: again, see comments below]
The implication of that, one would think, would be that palaeontological impact assessments should be routine in the face of proposed development, at least where the geology indicates the potential for fossils. And perhaps they do: certainly the Enbridge case was triggered by something. The thing is, the HCA is a powerful law, on paper at least, and the extent and degree of protection it affords reads as being very strong. I would be interested in hearing an argument though as to why all fossil sites in BC are not protected by the HCA. Has there been a specific exclusion under Section 37 or Section 13(3)a, for example? While the Archaeology Branch helpfully defines “Archaeological Resources“, these are actually only a subset of the Heritage Values which are the subject of the HCA. And while the AGF page cited above notes that “Where fossils are found on other Crown land the applicable authority is the Land Act.” I am honestly unclear on what basis this statement is founded and if indeed that such a deferral away from the HCA would hold up if challenged.
Anyway, not super interesting to most readers of this blog, but the Heritage Conservation Act may currently be providing the only legal protection for these sites. If I was a concerned paleontologist, I would simply submit a site form for fossil sites of outstanding significance and see what happens. Karst caves full of bear bones would be one obvious starting point, heh. The flip side is, of course, the fossil guys would likely need permits to conduct their field research!
I’m not, by the way, arguing it would be the most desirable thing to have the HCA stretch to fossils – it would be better for fossils to have their own explicit protection. But it is better they be protected by the HCA than by the vague and insincere finger waving of the AGF.
And like I’ve said, I’m no lawyer, but I am a world class cynic.
And, even accepting the government’s position then, if they wanted, they could designate any fossil site they wanted, and do it immediately, unambiguously affording that site the full protection of the HCA.
If they wanted.
By the way, if you are interested in fossils, then the BC Palaeontological Alliance looks like a good outfit. If not protected by the Heritage Conservation Act then it is essential that very strong and unambiguous legal protection be extended to at least the cream of BC’s fossil heritage.
This is the excerpt from the Enbridge Report noted above, emphasis added:
If fossils are encountered, the monitor determines the heritage value of the material. Fossil with low value are recorded and photographed. Select low value fossils may be collected if they can provide scientific information. For fossils determined to be of moderate value, representative collections are made. Discovery of low and moderate value fossils slows excavation but does not stop construction.
When fossils of high heritage value, such as dinosaur bones, are encountered, excavations are temporarily stopped. The monitor then reports the find to, and consults with, the Archaeology Branch of the Ministry of Tourism, Sport and the Arts. With an onsite palaeontological monitor, construction will only stop if fossils with high heritage value are encountered and the monitor will provide information regarding site dispensation to the operators and the proponent. The Archaeology Branch will determine the next step after construction is stopped. The monitor might be directed to collect any exposed material, or to make a shallow excavation adjacent to the find to determine the extent of the fossiliferous horizon. In rare cases, a full palaeontological excavation will be required and construction in the vicinity of the fossiliferous material will cease until appropriate mitigation as been completed.