Canada: New Aboriginal Consultation Requirements for Archaeological Assessments

Last Updated: November 9 2010
Article by Adam Chamberlain, National Chair, Climate Change Group

Most Read Contributor in Canada, November 2017

On Monday November 1, 2010 the Ontario Ministry of Tourism and Culture released new Standards and Guidelines for Consultant Archaeologists as well as a new technical bulletin entitled Engaging Aboriginal Communities in Archaeology. Together, these documents create requirements for consultation with Aboriginal communities during the Archaeological Assessment process regulated by the Ministry.

This development is important for the energy and other industries as any activity that requires archaeological assessment will now potentially have Aboriginal consultation requirements. While many energy developers are already undertaking Aboriginal consultation as part of regulatory processes, such as Environmental Assessment or Renewable Energy Approvals, the new archaeological assessment requirements codify Aboriginal consultation in this area.

Once compliance with these new requirements becomes mandatory on January 1, 2011, archaeologists will need to conduct consultation with Aboriginal communities as part of Stage 3 and Stage 4 archaeological assessments. While many consultant archaeologists already include Aboriginal consultation in their archaeological assessments as a regular practice, these new documents impose this as a requirement. Further, by imposing this requirement on consultant archaeologists, developers contracting for their services will be unable to scope Aboriginal consultation out of the work to be done by archaeologists on their behalf.

The Ministry is referring to the technical document Engaging Aboriginal Communities in Archaeology, as a "living" document. As such, the Ministry is indicating that it will continue to review the document as it engages with Aboriginal communities in order to ensure that it remains useful and effective and continues to reflect emerging best practices and accepted principles.

Following on the development of a growing line of court cases, the Duty to Consult with Aboriginal communities continues to become a part of the normal course of doing business. While the Duty to Consult is owed by the Crown, elements of the Duty are increasingly being delegated to developers and other non-Crown proponents of activities that could impact on the rights of Aboriginal Communities and their members. The changes discussed in this bulletin are but the most recent example of this trend towards imposing responsibilities related to the Duty to Consult on non-Crown entities.

Developers, be they are active in the energy, infrastructure, housing or other sectors need to ensure they are aware of, and comply with, the growing number of situations that may see Aboriginal consultation requirements imposed on them.


The standards and guidelines are for consultant archaeologists conducting land-based archaeology in Ontario. Consultant archaeologists undertake archaeological work for clients who are required to address archaeological considerations as part of the land use planning and development process. Under the Ontario Heritage Act, anyone wishing to carry out archaeological fieldwork in Ontario must meet the following criteria. They must:

  • have a licence from the Ministry of Tourism and Culture
  • file a report with the Ministry containing details of the fieldwork that has been done for each project and any other information that the Ministry requires

Following standards and guidelines set out by the Ministry is a condition of a licence to conduct archaeological fieldwork in Ontario.

Purpose of the Standards and Guidelines

Standards set out are the basic technical, process and reporting requirements for conducting archaeological fieldwork. They are practices that Ontario's community of consultant archaeologists have agreed should be followed for every project and will be the standards to which licensees will be held by the Ministry.

Guidelines give guidance or advice on good practice beyond the requirements of the standards or, under certain circumstances, provide an acceptable alternative to the standards when stated conditions are met. Following the guidelines is considered to be a matter of professional judgment on the part of the licensee.

Together, these standards and guidelines

give consultants:

  • a benchmark for carrying out and documenting archaeological fieldwork in the land use development context, with the goal of ensuring that archaeological conservation in Ontario is carried out at a consistent and appropriate level
  • additional guidance for carrying out and documenting certain aspects of archaeological fieldwork and optional practices considered acceptable under special conditions
  • flexibility to exercise professional judgment, based on experience and research, to work beyond the minimum standards or respond to local conditions specific to a particular project
  • a clear understanding of the Ministry's expectations, which will help to ensure that the review process is transparent, efficient, and timely


The Technical Bulletin is intended to help licensed consultant archaeologists engage Aboriginal communities in archaeology as effectively as possible.

It summarizes the direction on Aboriginal engagement set out in the Standards and Guidelines for Consultant Archaeologists and provides information and resources to assist consultant archaeologists in successfully following the standards and guidelines. In this context, engagement means involving Aboriginal communities in each stage of an archaeological project, to the extent and in the manner that best suits their interests and the needs of the project.

Archaeology is particularly relevant to Aboriginal communities because it can help to document Aboriginal histories and peoples and to identify sacred sites and ancestral remains. Engaging Aboriginal communities in archaeology is intended to improve understanding of an archaeological project and enrich the archaeological record. The process demonstrates respect for Aboriginal interests and heritage, recognizes Aboriginal peoples' connection to the land, and allows everyone to benefit from their knowledge.

Engagement considers the interest of Aboriginal communities in the archaeological assessment, the protection of Aboriginal archaeological sites, and the disposition of Aboriginal artifacts and ancestral remains. It also seeks to build relationships with Aboriginal communities that will facilitate their engagement in future projects. Effective engagement requires good planning and begins early in the project.

The Ministry states in the Technical Bulletin that it is committed to continual review of the document with Aboriginal communities and archaeology stakeholders and will update the bulletin as needed to ensure that it is useful, effective and current. The Ministry is encouraging feedback from Aboriginal communities and archaeologists.


If an archaeological project is in Ontario the consultant archaeologist must engage Aboriginal communities at the following stages:

  1. In Stage 3, when assessing the cultural heritage value or interest of an Aboriginal archaeological site that is known to have or appears to have sacred or spiritual importance, or is associated with traditional land uses or geographic features of cultural heritage interest, or is the subject of Aboriginal oral histories.
  2. At the end of Stage 3, when formulating a strategy to mitigate the impacts on the following types of Aboriginal archaeological sites through avoidance and protection or excavation of:

    1. rare Aboriginal archaeological sites
    2. sites identified as sacred or known to contain human remains
    3. woodland Aboriginal sites
    4. aboriginal archaeological sites where topsoil stripping is contemplated
    5. undisturbed Aboriginal sites or
    6. sites previously identified as of interest to an Aboriginal community

When Aboriginal communities have been engaged as part of an archaeological project, a description of the engagement and a copy of any documentation arising from the process must be provided to the Ministry.

In the event that something unexpected is discovered during a Stage 4 that would change the interpretation of the archaeological site, the relevant Aboriginal communities should be contacted.

Engaging Aboriginal communities at the following additional stages constitutes wise practice, which consultant archaeologists are encouraged to follow. Aboriginal communities should be engaged:

  • In Stage 1, when conducting the Background Study, in order to identify information sources in local Aboriginal communities (e.g. for information on traditional use areas, sacred sites, and other sites when available and relevant to the property).
  • In Stage 1, when evaluating archaeological potential and making recommendations to exempt areas meeting the criteria for low archaeological potential from further assessment, in order to ensure there are no unaddressed Aboriginal cultural heritage interests.
  • In Stage 2, when assessing a property and determining archaeological sites that require Stage 3 fieldwork, in order to determine interest (general and
  • site-specific) in the Aboriginal archaeological sites and ensure that there are no unaddressed Aboriginal archaeological interests connected with the land surveyed or sites identified.
  • In Stage 3, when making recommendations regarding the excavation or preservation of Aboriginal archaeological sites of cultural heritage value or interest (other than those identified in the standards), in order to review the recommendations with the relevant, interested Aboriginal communities.

If human remains are uncovered at any stage in the fieldwork process you must cease fieldwork and report the discovery to the police or coroner. This is a mandatory requirement of the Cemeteries Act.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions