Construction projects can face unexpected challenges, but few are as sensitive and consequential as the discovery of ancestral remains on a worksite. These discoveries raise immediate cultural, legal, and financial responsibilities for developers and other stakeholders. 

Ancestral remains represent the heritage, identity, and dignity of Indigenous communities. Mishandling or disregard for such sensitive discoveries can cause profound cultural harm and relationship strain with communities. Respectful engagement, consultation and care of remains is both imperative from a moral and reconciliation standpoint. 

Unexpected discoveries translate directly into costs and delays. A developer may be responsible for funding assessments, which can include engaging specialists (such as archaeologists), indigenous communities, and other stakeholders. Beyond direct expenses, the risk of stoppages mid-construction threatens timelines, contractual obligations, and investor confidence. 

Prevention: Pre-Construction Investigations and Mitigations

Ancestral remains discovered on construction sites can present a particularly sensitive challenge. Developers can take preliminary measures to ensure they have the correct contingency plans in place where there is a discovery of ancestral and paleontological remains on site. 

Impact Assessment Process

Historic artifacts and resources are often not visible on the surface and can lead to impact issues down the road if not discovered early on. A Historic Resources Impact Assessment (“HRIA”) can be undertaken, which can help to identify these historic artifacts and resources. Historic resources can fall into 4 categories: 

• Archaeological sites (buried artifacts and other evidence that tell us about human life in the past)
• Palaeontological sites (fossilized remains of plants and animals)
• Historic buildings and other structures
• Indigenous traditional use sites

Indigenous traditional use sites can include unregistered grave sites, burials and cemeteries as outlined on the Government of Alberta’s Indigenous Heritage Section webpage. ^[1] 

Some projects will require Historical Resource Act (HRA) approval through an application. A HRIA will need to be undertaken to meet the approval requirement. The Government of Alberta’s website provides a list of types of projects that will always require an application.^[2] These include: 

• Projects that require the completion of an Environmental Impact Assessment.
• Projects that require approval by the Canadian Energy Regulator or Alberta Utilities Commission.
• Projects that are subject to Green Zone historic resource predictive modelling under supervision of Alberta Arts, Culture and Status of Women (primarily forest harvest activities).
• All developments requiring conservation and reclamation approval by Alberta Environment and Protected Areas or the Alberta Energy Regulator.
• Projects located within Historic Resource Management Areas, which currently include Dinosaur Provincial Park and World Heritage Site area, Writing-On-Stone Provincial Park area, Fort George Buckingham House area and Majorville Cairn and Medicine Wheel area.
• Class I or equivalently sized pipelines.
• Transmission lines and alternative power projects.
• Transportation-related projects.
• Water distribution and diversion projects (not including small-scale utilities).
• Coal and oil sands mines, including related components (for exploration activities, see bulletins below).
• Industrial facilities.
• Early risk identification that can help avoid surprises mid-construction.
• Prevention of project shut down, surprise assessments, and additional unforeseen costs.
• Reputation protection and social responsibility.
• Help contractual risk allocation and satisfy legal obligations.

Additionally, the Government of Alberta also provides a detailed listing of already located historic resources on a map and in list form. The list is updated bi-annually and is a great first-step resource in determining if you are developing on an already established historic area..^[3] In the case where a developer does not fall into a project type that will require HRA approval and is uncertain as to if there is a historical resource on their construction site, companies can still opt to participate in a HRIA report. 

It is important to note that HRIAs and any mitigative studies will be paid for by the developer undertaking or proposing development. The Government of Alberta provides a list of qualified resource consultants that one may contact if they are looking to have assessment work done.^[4] The list provides comprehensive contacts for Archaeological and Paleontological consulting and is an excellent resource when seeking to participate in an HRIA report.  

Why do an Assessment?

There are multiple reasons as to why an assessment is a strategic idea, even where one may not be required: 

Contractual Clauses

Parties can reduce conflict and uncertainty by addressing risk within the terms of a contract. One of the following strategies may be engaged: 

• Create your own “stop work” clause similar to the one under the HRA s. 31, which is discussed further below. This clause can define obligations for halting work and how stakeholders and involved parties can be notified after discovery. This helps to make it a clear contractual duty of the developer, beyond the statutory duty.
• Specify who pays for delays, archaeological assessments, and other mitigation costs. While this is generally associated with the developer, this kind of clause can act as a shield for sub-contractors and other involved parties to protect themselves from absorbing any unexpected expenses.
• Build in a schedule adjustment clause that is specific to construction suspensions associated with discoveries.
  1. All construction activities must be halted
  2. The area must be secured
  3. The relevant authorities must be contacted 

Building in provisions not only is a benefit to reduce risk of dispute or unexpected planning down the line but can also protect relationships with parties involved in the construction itself and associated indigenous communities. 

Responding to a Discovery Mid-Construction 

Reporting the Discovery 

Discovery of historic resources mid-construction project can happen. There are three steps that must be taken: 

Under Section 31 of the HRA, anyone who becomes aware of a resource during a development must report it to the Heritage Division of Alberta Arts, Culture and Status of Women. Depending on the type of resource discovered The Government of Alberta has a standard requirement guide sheet useful in guiding developers to the right reporter based on the historic resource found.^[5] 

Once a discovery is reported, the Minister may issue a temporary stop order under s. 49 of the HRA. This order will halt work for a period up to 15 days to allow for an investigation. The Minister may also issue a further suspension of the activity for an additional specified period of time. 

Who bears the cost? 

Under s. 37(2) of the HRA, it may be directed that a HRIA or mitigation be carried out at the developer’s expense.^[6] 

In 2019, Rural Municipalities of Alberta (RMA) had a resolution requesting costs related to HRA requirements be borne by the Government of Alberta. The Government of Alberta had the following response: 

Alberta does not assume the responsibility for costs of Historical Resources Act requirements issued to developers, or provide payments to landowners in the rare cases when development does not proceed. The obligation of commercial developers to assume the costs associated with addressing Historical Resources Act requirements is standard across all industry sectors. It is common for other Government of Alberta regulatory departments to issue requirements that involve studies (e.g., slope stability, vegetation inventories, rare species surveys) for which the developer is expected to pay the costs. This approach is also employed in jurisdictions across Canada. Our program has operated successfully in this manner for several decades.^[7]

However, s. 50 of the HRA gives the Minister discretion in authorizing compensation for losses caused by stop orders or mitigation requirements suffered under the Act. However, this is not mandatory and is on a case-by-case basis. In short, developers should proceed on the assumption that costs and delays will fall to them. Compensation may be granted in exceptional cases, but this should not be relied on. 

Non-compliance with Post- Discovery Requirements

There are significant penalties for developers who breach their duties under the HRA. Under s. 52 of the HRA, any contravention of the Act, regulation, condition of a permit, or direction of the Minister will be guilty and liable for a fine of up to $50,000, imprisonment for up to 1 year, or both. 

Key Takeaways

The discovery of ancestral remains on construction sites presents not only legal obligations, but cultural, ethical and financial considerations that demand careful planning and response. Beyond moral responsibility, compliance with the Historical Resources Act is critical to avoid penalties, delays, and damage to ones reputation.

Proactive strategies such as pre-construction assessments and contractual risk allocation help mitigate uncertainty and ensure respectful handling of remains if discovered. Early engagement with qualified consultants, regulatory authorities, and Indigenous communities helps foster trust and good faith business practices. 

Ultimately, by treating discoveries with respect, transparency, and preparedness, stakeholders not only meet their legal duties, but also contribute to reconciliation efforts and long-term project sustainability.