Who should have ownership of archaeological finds? Is the rule the same as the normal rule in the Civil Law of Quebec and the Common Law of the other provinces and territories, namely that the ownership of items found in the soil goes to the landowner?77 Does it go to the finder, as in the case of Common Law finders on (but not beneath) land?
The answer is generally no. Most provincial statutes treat archaeological discoveries as being of such significance that they deserve to belong in the public domain: they declare that archaeological finds will not belong to the landowner or the finder, but rather to the provincial Crown.78 The effect is essentially the same in the territories. However, there are two important exceptions: Ontario79 and Quebec.
Although the Ontario Heritage Act specifies that all archaeological objects taken without the authority of a licence are subject to seizure,80 it does not specify to whom the finds belong. Generally, at Common Law a find on or in land belongs to the landowner,81 except when the find is in a "public place"(e.g., on a road), whereupon it belongs to the finder. When the original ("true") owner of the found item (or his/her heirs) are ascertainable, it belongs to them.
Quebec's legislation is more complicated still.
- If the lands (on which the find was made) were public lands as of 1972 or later, then the find belongs to the provincial Crown.
- However, if these have been private lands since at least 1972, then ownership of the find is governed by the Quebec Civil Code, in the case of anything which is a "buried or hidden thing of which no one can prove himself owner, and which is discovered by chance."82
- Such discoveries, assuming that they have any value,83 are covered by the "treasure" provisions of the Code (article 938), that is, the find belongs to the landowner if it is the landowner who discovered it; if the finder is not the landowner, the find (or its value) is split half and half between them.
