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Cover of British Archaeology 114

Issue 114

Sept / Oct 2010

news

All the latest archaeology news from around the country

features

MAIN FEATURE: Happisburgh

The project leaders give us the latest findings after six years of research on the earliest humans in Britain.

The obscure ownership of archaeological material

Haggai Mor recently worked in one of the world's largest archaeological store and wondered who all the things dug up actaully belong to?

Finding Boudica's Last Battlefield

With the help of computerised terrain analysis, Steve Kaye has narrowed down the possibilities.

The Lost Anglo-Saxon Church of Westbury-on-Trym

Jon Cannon explores a crypt beneath a Bristol church and is greeted with an amazing find.

Finding Private Mather

A victim of battle in WW1 remembered by his family, is finally laid to rest.

Archaeology: What Is It For?

Martin Carver reflects on how and why archaeologists do what we do.

The Varmints Show

In the Varmints' second exploration of music and archaeology, Breck Parkman is uncovering the 'Whitehouse of Hippiedom' at the Olompali State Historic Park, San Francisco.

science

The dark secrets of ancient peat, the decaying of Star Carr

on the web

Audio-visual presentations online and the 'Visual Essays' of ArchAtlas.

Mick's travels

Mick and Jon share the wonders of Jersey

CBA Correspondent

From CBA Publications Officer, Catrina Appleby

letters

Your views and responses

features

THE BIG DIG: Links of Noltland

Eroding sand dunes are revealing an ancient landscape on a windswept and remote Scottish island.

MAIN FEATURE: Digging for (Invisible) People

Eroding sand dunes are revealing an ancient landscape on a windswept and remote Scottish island.

Dig for Shakespeare

Literary critics may wonder if Shakespeare wrote all those plays, but archaeologists know where to find him.

The Varmints Show

An occasional series specifically for the website, showcasing pop music inspired by archaeology or heritage. The first of the series features Air-Raid Shelter (Pillbox) by The Human Cabbages.

More online features to follow

news

All the latest archaeology news from around the country

on the web

Caroline Wickham-Jones investigates real and reconstructed worlds, and Andy Burnham highlights ancient sites viewable from the roadside, including extra content.

letters

Your views and responses

 

ISSN 1357-4442

Editor Mike Pitts

features

The obscure ownership of archaeological material

Haggai Mor recently worked in one of the world's largest archaeological stores, and began to wonder: who do all the things that archaeologists dig up and keep really belong to?

Last year, I had a placement at the London Archaeological Archive and Research Centre. The LAARC holds information on thousands of archaeological projects that have taken place over the past century throughout Greater London, and for most of them it stores the full archive, from artefacts and human remains to soil samples and excavation records.

Roy Stephenson, then manager of the LAARC, told me of a peculiar legal problem. In England, he said, such resource centres do not automatically obtain title to material which archaeological consultancies collect during pre-development work.

Significant time, money and effort are expended because of this situation. Archaeological archive centres seek to accept only material to which they can have title. Thus Museum of London Archaeology (MoLA) has had to create a "secondary archive" for finds it has excavated but cannot deposit at the LAARC, in the absence of deeds of title transfer; in July 2009 this archive contained material from 470 sites, curated by six officers.

This happens for a number of reasons. Before they can transfer title to an excavation archive, archaeologists have to locate the landowner (typically different from the developer for whom the archaeologists are working). Particularly with older material, this can be difficult, as land might be owned by many different people or companies who have no interest in transferring title. If the landowner is identified, they are sent a list of artefacts and asked to sign a transfer deed. There can be legal queries and fees to pay; sometimes there is simply no response. Archaeological consultancies can find themselves acting as secondary archive centres, securing the material but unable to make it accessible to the public or other archaeologists.

Archaeological material affected by property development is covered by Planning Policy Statement 5 (PPS5, the successor to PPG16), issued in March this year. To meet public interest in heritage, a developer may be required to commission excavation both before planning consent is granted, and as a condition of permission received. Any resultant archives, including all material retained from the ground, should "be deposited with a local museum or other public depository willing to receive it" (policy HE12.3).

The legal ambiguity results from two spheres of English law colliding at the point at which archaeologists remove objects from someone's land.

Renfrew Book

The Property Act 1925, and subsequent judicial rulings, state that a person owns everything which is in their land. This has been understood to mean, as Lord Renfrew put it when writing about an iron age hoard (in Loot, Legitimacy and Ownership, Duckworth 2000), that "the original owner of the land where the finds were made [is...] their rightful owner". This assumption is correct – so long as the artefacts were not removed from the land by a person authorised to do so.

Commercial archaeological investigation usually occurs before development starts. So it is arguable that by authorising investigation on the landowner's behalf, the developer relinquishes title to material before it is found, albeit having to do so in order to get planning permission. Once collected by an authorised person, things are no longer in the landowner's possession, and the presumption that the original owner is the rightful owner no longer applies. Yet when the developer/landowner gave consent to dig, it was impossible to know what would be removed, and often the investigation contract does not touch upon such removal. Thus, the archaeologist's action may be construed as falling outside the remit of the contract and therefore not permitted. If this is correct then archive centres and archaeological consultancies, in England, do not have title to artefacts and other material they collect and store.

This issue touches on one of the great moral dilemmas of modern times: the legal ownership of material representations of peoples' past. Do the rights of landowners supersede the rights of their community with respect to the ownership of archaeological material? Do archaeologists have the authority to remove archaeological property, and do landowners forfeit ownership of that property, purely by the latter having consented to an archaeological investigation? Such a position would seem to conflict with the Universal Declaration of Human Rights, namely article 17 (the right to own property without being arbitrarily deprived of it) and article 27(1) (the right to participate in cultural life, enjoy the arts and share in scientific advancement).

A number of statutes and international conventions are, of course, relevant to this discussion. But here I will refer to two court cases which set important precedents.

In Parker v British Airways Board [1982] 1 All ER 834 CA, the court of appeal ruled in favour of a man who found a gold bracelet at a British Airways lounge, which BA sold after he had handed it in. The court held that since Parker was invited to the lounge he was not trespassing and therefore was entitled to the money that BA made from the sale.

Archaeology consultants are, much like Parker, invited to conduct their investigation. Notwithstanding the landowner's right to property, it can be argued that it would be reasonable to assume that as part of their duty archaeologists will remove objects from the land for analysis and preservation. It might, therefore, be argued that landowners forfeit ownership of these objects purely because they have consented to an archaeological investigation taking place.

On the other hand, in the case of Waverley Borough Council v Fletcher [1995] 4 All ER 756, a metal detectorist dug up a medieval brooch. The council sued for its return arguing that, since it was found buried in its land, it was the rightful owner. Fletcher countered that he was pursuing an acceptable recreational activity and not trespassing. The high court judge ruled in Fletcher's favour. But the court of appeal disagreed. Notwithstanding the judges' agreement that metal detecting can be considered a recreational activity permitted in public parks, the court of appeal felt Fletcher's severance and removal of the brooch constituted trespass: therefore, the council was the rightful owner.

Archaeologists are clearly invited to carry out an investigation on the land. But it is the selection, severance and removal of objects, and their deposition with a third party repository, which might not be covered by the contract with the developer/landowner and could, therefore, be considered unauthorised.

"One of the great merits of the common law", wrote Lord Justice Donaldson discussing the British Airways case, "is that it is usually sufficiently flexible to take account of the changing needs of a continually changing society". Alas, concerning archaeological finds the existing law does not sufficiently protect landowners, nor does it adequately facilitate transfer of title in the course of archaeological projects. These issues have not yet been researched, and there is no reference point for examining them. It seems to me that the time for action has come, before archaeological institutions in England are swamped with potsherds and bricks to which they have no title.

These issues are explored at greater length in a 2009 MA dissertation submitted by the author to UCL Institute of Archaeology.

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