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Indigenous - Archeology. Taccone et al. v. Registrar, Funeral, Burial and Cremation Services Act, 2002
In Taccone et al. v. Registrar, Funeral, Burial and Cremation Services Act, 2002 (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, here brought against a "decision by the registrar appointed under the Funeral, Burial and Cremation Services Act, 2002, SO 2002, c.33, (“FBCSA”) (the “Registrar”) to not reimburse costs that the landowner Applicants incurred to perform a burial site investigation that was ordered after human remains were found on their land".
Here the court illustrates some FBCSA procedures and practices, here regarding 'burial site investigation':[2] Under FBCSA, s. 96(1), the Registrar can order the owner of land on which human remains are discovered to undertake an investigation of the burial site to determine the origin of the remains. Should the Registrar find that a s. 96(1) investigation would impose an undue financial burden on the landowner, the Registrar is required under FBCSA, s. 96(4) to undertake the investigation. To satisfy the obligation under s. 96(4) to undertake the burial site investigation, the Registrar adopted a practice of reimbursing landowners for proven or reasonably incurred investigation costs to mitigate or relieve the undue financial burden on the landowner.
[3] After human remains were found on the land, the Registrar ordered a burial site investigation under s. 96(1) to determine the origin of the burial site. Thereafter, the Registrar found that the investigation would impose an undue financial burden on the Applicants who submitted invoices for the investigation totalling $632,421.64. On reviewing the invoices, the Registrar found that only $169,528.47 of the invoiced work should be reimbursed as the balance of the claimed work related to a Stage 4 archeological assessment that the Municipality of Trent Lakes had ordered under a separate procedure.
[4] On March 5, 2024, the Registrar decided to reimburse the Applicants $169,528.47 as their costs for the burial site investigation, and did not pay for any other archeological work on the land. On April 18, 2024, the Registrar declined the Applicants’ request to reconsider the reimbursement decision of March 5, 2024.
Burial Site Investigations vs. Stage 4 Assessments
[6] A central issue on this application is the difference between a burial site investigation and a Stage 4 archaeological assessment. Each is briefly described below.
a. Burial Site Investigations
[7] The FBCSA and its General Regulation O. Reg 30/11 (the “Reg.”) govern the process for responding to burial site discoveries. The FBCSA is administered by the Registrar on behalf of the Ministry of Public and Business Service Delivery and Procurement.
[8] A “burial site” is land containing human remains that is not a cemetery: FBCSA, s. 1(1). A person who discovers or has knowledge of a burial site in Ontario must immediately notify police or a coroner: FBCSA, s. 95. If no foul play is suspected, the coroner shall so notify the Registrar and the owner of the land must take necessary steps to preserve the site, the human remains, and any artifacts until a final disposition is made pursuant to the legislation: Reg., s. 175(1).[1]
[9] The Registrar may order the owner of land on which a burial site is found to undertake a burial site investigation, with minimum disturbance to the site as reasonable in the circumstances, to determine the origin of the site: FBCSA, s. 96(1), (3). The main purpose of a burial site investigation is to determine the probable cultural origin of the person whose remains are interred, and other information, such as the site’s boundaries, to help the Registrar in declaring whether the site is an aboriginal burial ground, a burial ground, or an irregular burial site: FBCSA, s. 98(a)-(c). Notice of a declaration by the Registrar under FBCSA, s. 98 serves to facilitate the final disposition of the remains: FBCSA, s. 97-100. The remains must be interred in a cemetery or the burial site may be established as a cemetery: FBCSA, s. 99, 100; Reg., s. 178, 183(3), 184.
[10] If a burial site investigation is ordered, an archaeologist holding a professional licence under Part VI (Conservation of Resources of Archaeological Value) of the Ontario Heritage Act, RSO 1990, c. O.18 (“OHA”) shall conduct the investigation and advise the Registrar of the possible cultural origins of the remains within five days after starting the investigation: Reg., s. 174(3). Upon being advised of the possible cultural originals of the remains, the Registrar shall advise those believed to be representatives of the person whose remains are interred of the burial site and the possible cultural origins of the remains. The archaeologist conducting the burial site investigation must report the following information to the Registrar (Reg., s. 174(2)(1.)-(6.)):1. A determination of the probable cultural origin or religious affiliation of the persons whose remains are interred and the basis upon which it is made.
2. A description of the boundaries of the burial site.
3. Details of the style and manner in which the human remains are interred.
4. A description of any artifacts that, in the opinion of the investigator, form part of the burial site.
5. An opinion as to whether the burial site was set aside with the apparent intention of interring human remains in accordance with cultural affinities and the basis upon which the opinion is made.
6. Information relevant to the preparation of a site disposition agreement. [11] If the Registrar is of the opinion that the burial site investigation would impose an undue financial burden on the landowner, the Registrar shall undertake the investigation: FBCSA, s. 96(4). Incidental to undertaking the burial site investigation, the Registrar may reimburse the landowner for verified costs they reasonably incurred in performing an investigation pursuant to the Legislation Act, 2006, SO 2006, c. 21, Sched F, s. 78 that provides:If power to do or to enforce the doing of a thing is conferred on a person, all necessary incidental powers are included. [12] Powers conferred by an enabling statute are construed to include those expressly granted and, by implication, all powers practically necessary to achieve the intended outcome of the legislated scheme: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4at para 51; Green v. Law Society of Manitoba, 2017 SCC 20 at para 42.
b. Stage 4 Archaeological Assessments
[13] A “Stage 4 archaeological assessment” is the responsibility of the Ministry of Citizenship and Multiculturalism (“MCM”) that administers Part VI of the OHA. MCM requires consultant archaeologists to follow the Standards and Guidelines for Consultant Archaeologists (“Standards”) as a condition of holding a licence to conduct archaeological fieldwork in Ontario: OHA, s. 48(4)(d).[2]
[14] Most land use planning and development legislation in Ontario identifies archaeological conservation as a matter of provincial interest. When a proposed land development project likely has archaeological potential, the development proponent is required to retain a licensed consultant archaeologist to undertake an archaeological assessment of the development lands to address the provincial interest in the potential archaeological resources.
[15] The Standards set out four stages for the conduct of an archaeological assessment. Stages 1 to 3 use progressively more intrusive methods to identify archaeological sites within development lands to assess the degree of cultural heritage value or interest in the identified sites and to recommend the most appropriate strategies to mitigate any impact to them from the land development activity: Standards at pp. 5-61.
[16] At Stage 4, the consultant archaeologist conducts the recommended strategies to mitigate the impact of the development on the archaeological sites. If avoiding or protecting an archaeological site is not a viable option, the consultant archaeologist conducts an archaeological excavation with a controlled removal that records the site context and cultural features to document the cultural heritage value or interest of the site and to preserve the information for future study: Standards at pp. 67-89. The goal of a Stage 4 assessment is to recover as much data as possible from the site to conserve, protect, and preserve its heritage value.
[17] A Stage 4 assessment generally involves the excavation of an archaeological site by hand (i.e., typically with a shovel or trowel) according to a site grid survey by which excavations are to proceed in one-metre square units until the work yields fewer than ten (10) artifacts from grid units at the edge of the block excavation. Excavation work must continue if grid units being excavated include at least two finds of formal tools or diagnostic artifacts, or fire-cracked rock, bone, or burnt artifacts, among other things. In addition, hand excavation work must continue for 2 metres past any cultural features (e.g., post-holes from a building structure) until there are no further high-artifact-yielding units: see Tab 4.1 (Determining the extent of excavations) of the Standards at pp. 85-87. It follows that the excavation area for a Stage 4 assessment must generally continue to expand until the minimum yield of wide-ranging artifacts is no longer uncovered, the excavation runs at least 2 metres beyond any cultural features, and units in the periphery of the excavation area yield few artifacts. At para 18-62 the court continues to usefully walk through the details of investigation and related procedures. The court summarizes:Analysis
[72] As set out below, I find that the Registrar’s reconsideration decision of April 18, 2024 to not further reimburse the Applicants’ burial site investigation costs (i.e., beyond the $169,528.47 that the Registrar agreed to reimburse on September 22, 2023) was unreasonable.
....
g. Costs Associated with Requests by the Curve Lake First Nation
[97] Given my finding that the Registrar’s decision is unreasonable due to their instructions for conducting the burial site investigation, it is unnecessary to address the Applicants’ alternative argument that the scope of the investigation expanded due to requests by the Curve Lake First Nation. That said, and so long as any such work requested by the First Nation fell within the scope of what the Registrar had directed and authorized for the investigation, I would have found any such investigative work performed to reasonably be subject to reimbursement.
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