Introduction

 

            Private individuals, institutions, both public and private, and governments of all levels may establish archives. Almost every Provincial government in Canada has enacted legislation to explicitly establish a Provincial Archives. This legislation varies dramatically in scope and complexity, however. The purpose of this paper, therefore, is to examine the Provincial and Territorial legislation in light of the UNESCO Draft Model Law on Archives. Specifically, it will focus on two areas: administrative structure and the scope of the collections as mandated by the respective statutes. It will also briefly examine the relationship between archival and records management provisions.

 

Literature Review

 

            The Draft Model Law on Archives was not intended as legislation per se but rather it was designed to provide “the basis for the reform of existing legislation, which is unsatisfactory in many ways, and for the formulation of a law on archives in countries which have [yet] to organize their archives from the beginning.”[1] Consequently, it has provisions applicable to both national and state-level archives.

 

            Despite its significance, there is a paucity of literature on the legal basis of Canadian archives. This is possibly due to the fact that most archivists come from a historical or library background and so have little formal training in undertaking legal research[2]. The relatively low profile of archives, as compared to other government-sponsored cultural institutions, has probably further exacerbated this situation. A brief review of the published scholarly literature is instructive[3].

 

            Lewis H. Thomas’ seminal 1962 article “Archival Legislation in Canada”[4] is the first comprehensive study of the Canadian situation. At that time, formal provincial archives had not yet been established in Alberta, New Brunswick, or Prince Edward Island. Thomas first discusses the purposes of archival legislation in general terms and then proceeds to examine the existing provincial legislation[5]. He concludes that:

 

The pattern of legislation is as diverse as the country itself; its features reflect the differing historical traditions, governmental practices, and degrees of public interest in history, which characterize the several provinces and regions of the nation[6].

 

Thomas also finds that the provisions for records management vary dramatically throughout the country, particularly in those provinces lacking formal statutory authority. He finally concludes by suggesting that reviewing the state of archival legislation in Canada would be a “most appropriate” Centenary Project[7].

 

            The next comprehensive look at archival legislation did not appear for over twenty years. Writing in 1983, Jerome O’Brien notes that while the situation about records management has improved in most jurisdictions, the legal basis for archives in some provinces was still very tenuous[8]. He next analyzes the various statutes that govern archives with regard to acquisition policies – legal requirements and limitations, statutory records management provisions, and freedom of information concerns. O’Brien concludes that archivists need to be more knowledgeable about the impact of the law on their profession and that they should take a more active role in influencing policy development[9].

 

            The only Canadian text on archives administration is limited in its scope to Federal and Quebec provincial legislation[10]. This is due to its origin in the Quebec archival community. Carol Couture and Jean-Yves Rousseau’s 1983 monograph discusses the archives and access to information legislation in some detail, including the purpose behind the law[11]. Unfortunately, because of its very narrow focus, it is of limited utility to archivists practicing outside of Quebec.

 

            The following year, Kathy Hall examined the Federal, New Brunswick and Saskatchewan provincial statutes, and the archives by-laws for the municipalities of Ottawa and Toronto in terms of acquisition mandates for both public and private records[12]. She concludes that while “much of the archival legislation in Canada is either inadequate or vague, or both”, archives are functioning well. This is due in large measure to policies and procedures  which “have little or no support in legislation or other legal mandates but, apparently, they do work”[13]

 

            In 1991, Victoria Lemieux presented a paper entitled “Archival Solitudes: Legislative Concepts of Records and Archives and Their Impact on Appraisal and Acquisition” to the Association of Canadian Archivists annual conference. This is the most recent work on the subject of archival legislation in Canada[14]. Lemieux argues that legislators have made an artificial distinction between “archives” and those active (and inactive) records still held by institutions[15]. Records are defined as archives only when they are transferred to a repository. There is more emphasis placed on form rather than function. She also concludes that archivists need to play a great role in shaping archival legislation.

 

            Finally, while it is certainly not a scholarly account, Ian E. Wilson’s article in the Canadian Encyclopedia provides a useful, if brief, account of the development of archival legislation since the late eighteenth century. He notes the most significant milestones in legislative developments such as the 1790 Quebec ordinance  “For the Better Preservation and due Distribution of the Ancient French Records” and the establishment of what is now the National Archives of Canada in 1912[16]. 

 

Administrative Structure

 

            The 1972 UNESCO model law stresses the importance of the archives’ autonomy from other government departments. It is proposed that the Premiers’ offices (or equivalent) should directly oversee the archives[17]. This position is justified because:

in the course of dealing with cultural property the archives administration engages in professional and scholarly activities, and should therefore be autonomous as are institutes of higher education such as universities… which have basically similar aims[18]

 

 

Only Ontario has legislation that is explicitly comparable to this model. Elsewhere, there is much variation across Canada in terms of the archival administrative structure established in legislation. These range from the extreme position of having no formal statutory basis for a provincial archives to cases where the legislation explicitly establishes the existence of the archives and clearly defines its administrative structure. Indeed, it has been questioned if a Canadian model law could even be developed that:

takes into account the diversity of cultural aspirations, political jurisdictions, and demand of sponsors for efficient management of recorded information, and at the same time upholds and fosters basic archival principles[19].

 

 

            An extreme example of minimal archival legislation is found in British Columbia. The Document Disposal Act merely implies the existence of a provincial archives as the Act provides for the deposit of provincial and municipal records in the archives[20]. Nowhere is the archives given a formal statutory foundation. The BC Archives was established in 1893 as part of the Legislative Library but it first received official recognition in 1908[21]. Likewise, the Provincial Archivist’s existence is implied, rather than explicitly specified, as the Act provides that he or she is a member of the Public Documents Committee and can certify the “authenticity and correctness of the copy or reproduction” of a document held by the archives[22].

 

            The legislative position in Alberta is also minimalist. The Historical Resources Act merely states that the Minister may “provide for the operation, maintenance and development of the Provincial Archives of Alberta”[23]. As with British Columbia, the authority of the Alberta Provincial Archivist to certify the authenticity of archival documents is provided for, but there are no further references to the function of that office[24].

 

            The current position is Alberta is the result of a rather long evolutionary process. Between 1925 and 1965, the legislative library served as an ad hoc Provincial Archives in the absence of a more formal institution. From 1966 until its repeal in 1970, the archives had its statutory basis in the Provincial Archives Act. Management of the archives was then regulated through the Alberta Heritage Act. The Historical Resources Act was enacted in 1975[25].            

 

            The Provincial Archives in Manitoba has a somewhat more solid basis in legislation than the foregoing but, oddly, it is established as a branch of the Legislative Library[26]. It is not entirely clear from the Act if the archives are on an equal footing with the library or if it is a subordinate body. The Legislative Librarian and Provincial Archivist appear to hold equal status under the Act[27].

 

            Saskatchewan typifies the opposite extreme. Not only does the Archives Act provide for The Saskatchewan Archives Board “which shall have general supervision of the archives of Saskatchewan” and the office of Provincial Archivist, it also stipulates that physical offices will be opened in conjunction with the University of Saskatchewan and the University of Regina[28].

 

Nova Scotia has an administrative structure similar to that of Saskatchewan. The Public Archives Act establishes a Board of Trustees who primarily serve an advisory and oversight function. More generally, they “support the development and improvement of the Public Archives”[29]. Primary authority over the archives rests with Minister of Education and Culture[30]. The Provincial Archivist, who is appointed by the Governor in Council, serves as the chief executive and operating officer of the Public Archives[31]. This is a major change from the previous legislation where there was no statutory requirement that a Provincial Archivist be appointed; formerly the Board had the discretion to “appoint such officers and employees as it deem[ed] expedient”[32].

 

            While it is not governed by a board, the Provincial Archives of Newfoundland and Labrador is clearly established by the legislation[33]. The mandate of the Archives is clearly specified and the duties of the Provincial Archivist are enumerated[34]. It appears that the Archivist reports directly to the Minister of Tourism and Culture, who has overall responsibility for the archives[35]. One unusual provision is reminiscent of the Manitoba legislation in that the archives must provide copies of relevant records to the Legislative Library[36].

 

            The Ontario Archives Act also provides for a very solid administrative framework[37]. The Provincial Archivist has “the rank of a deputy head of a Ministry” and reports directly to the responsible cabinet minister[38]. There are no provisions for the structure of the archives administration other than the usual section authorizing the Lieutenant Governor in Council to make regulations “respecting the administration of the Archives and the duties of the Archivist”[39].

 

            The legislation in New Brunswick closely resembles that of Ontario[40]. The Minister of Supply and Services “is responsible for the administration of this Act and may designate persons to act on his behalf”[41]. The Act also provides for the appointment of a Provincial Archivist with an enumerated list of duties and responsibilities[42]. While it is not specified in the Act, it is reasonable to assume that the Provincial Archivist reports to the Minister.

 

            The Prince Edward Island Archives also employs a similar administrative structure[43]. The Act provides that “there shall be an officer in charge of the Public Archives and Records Office to be known as the Provincial Archivist”[44]. Unlike the Ontario and New Brunswick legislation, however, it is not specified who is to oversee the Provincial Archivist.

 

            Both the Yukon and the Northwest Territories have administrative provisions almost identical to that of Prince Edward Island[45]. Provision is made for the appointment of a Territorial Archivist who is to oversee the operation of his or her respective archives. Confusingly, the Northwest Territories legislation provides that the archivist “shall be appointed by the Minister” but nowhere does it specify which Minister is specifically responsible[46].

 

            The Quebec Archives Act has several unique provisions[47]. It places a much greater emphasis, for example, on records management procedures than do most other provinces. One observer has noted that:

The act has the virtue of not falling into the trap of considering archives for their secondary value only. Instead, it also takes into account the primary value of records, that is, the administrative use for which they were created in the first place[48].

 

Significantly, the statute makes a legal distinction between public and private archives. The Keeper of the Archives Nationales du Québec is also responsible for the preservation inactive (and, in some cases, semi-active) records of public bodies[49]. The Minister of Cultural Affairs must accredit private archival agencies, which are then eligible to receive technical and financial aid[50].

 

            The Keeper also has greater powers than most other Provincial Archivists. These include the right to “take possession of public archives the preservation of which is endangered” and to “revendicate [i.e. to reclaim; to demand the restoration of] public archives possessed without right”[51]. The Keeper may also be vested with the power to establish records retention schedules[52]. There are no other provisions concerning the formal administrative structure of the Quebec Provincial Archives.

 

            Therefore, there is a wide range in how Canadian Provincial governments establish their archival institutions. While British Columbia provides no formal administrative structure at all, Saskatchewan and Newfoundland leave very little to the discretion of the Provincial Archivist. Commenting on this point in 1962, Thomas concludes that:

It is quite apparent that a successful archives can exist without the benefit of a statutory foundation as the British Columbia… archives bear witness. Nevertheless, a statutory foundation is to be desired since it confers an official status, a measure of public recognition, and a suggestion of permanence, all of which are vital for an archival institution[53].

 

Despite the passage of almost forty years, and the adoption of modern records management legislation by most provinces, some Provincial archives still lack a solid statutory foundation.

 

Collection Policies

 

The UNESCO model law provides that state archives should collect not only the various records of the parent government but also “documentary sources of persons who have played a decisive part in the life of the federal states or territory concerned”[54]. The state archives is also authorized to collect private records of major historic interest and there is even a right of appropriation if the private holder refuses to transfer the records[55]. The only forms of material explicitly specified are “documentary sources” and “official publications”[56].

 

            As with administrative structure, there is much variation across Canada in what legislators consider to be fitting material for archives to collect. The legislation in most provinces clearly enumerates the types of material the Provincial Archives will collect[57]. This form of legislation has been criticized, however:

As such definitions are not based on functional constants, they are forever in need of revision as new media emerge. When not revised, they can throw into question an archives’ right to be acquiring records of a certain medium. Finally, there is the problem of being media-based in an environment, which sees information or evidence of facts becoming increasingly independent of a particular documentary form due to computerization[58].

 

 

            As the Nova Scotia Public Archives Act has recently been substantially revised, it is instructive to compare the two legislative positions. The old version of the Act provided a very broad collection mandate. The term “public archives” was defined to include “all documents, records, structures, erections, monuments, objects, materials, articles or things of historic, artistic, scientific or traditional interest”[59]. A further section provides for the Board to manage historic structures or monuments[60]. As far as can be determined, this section was never actually used as this role is fulfilled by the various provincial museums and other private historical organizations[61].

 

            The legislation now provides that the Public Archives is to “acquire and preserve Government and private-sector records of Provincial significance and facilitate access to them”[62]. Records are clearly defined as “information or data that is recorded or stored by graphic, photographic, electronic, mechanical or other means”[63]. Leaving the list of media types open-ended effectively deals with the criticism of purely media-based definitions discussed above.

 

            The legislation in Prince Edward Island is not prima facie as broad as that formerly in force in Nova Scotia, but it is close. The Act provides that the Archives and Record Office may collect “printed documents, manuscripts, records, private papers and any other material, to whomsoever belonging, having a bearing on the history of Prince Edward Island or Canada ”[64]. This is the only provincial archives that does not limit the geographic scope of its collection.

 

            In contrast to the other two Maritime Provinces, the New Brunswick legislation clearly enumerates the types of archival material to be collected. Various forms of media are specified, concluding with “all other documentary materials regardless of physical form or characteristics”[65]. Notably, the definition of “public records” explicitly excludes “library or museum objects made or acquired and preserved solely for reference or exhibition purposes”[66].

 

            A similar situation prevails in Newfoundland. The Provincial Archivist is required to acquire, preserve, and make available records having a bearing upon the history of the province[67]. “Records” is very broadly defined to include, inter alia, forms, maps, plans, drawings, painting, prints, magnetic tape, “and all other documentary materials regardless of physical form or characteristics”[68]. The current legislation is a dramatic improvement over the old Historic Objects, Sites and Records Act which only covered public records of permanent historic value; “while the great mass of the current and dormant records were excluded from its purview”[69]

 

Despite the fact that very few provisions are made for the establishment of the Provincial Archives, per se, the Alberta Historical Resources Act provides a modern acquisitions mandate. The objectives of the archives include:

(ii) the acquisition, preservation, publication and public exhibition of documents, parchments, manuscripts, records, books, maps, plans, photographs, magnetic tapes or other materials, regardless of physical form, the preservation of which is in the public interest[70].

 

Given that the legislation does not make a clear distinction between the Provincial Museum and Archives, it is surprising that it so clearly separates the collection mandates of the two institutions.

 

            The legislation in the Northwest Territories is similar in scope. The Archivist may acquire “documentary material regardless of physical form or characteristic, having any bearing on the history of the Territories”[71]. Further provisions allow for the purchase of documentary materials[72].

 

            The objects specified in the Ontario Archives Act include “the discovery, collection and preservation of material having any bearing upon the history of Ontario”[73]. This is further elaborated by an enumerated list of the types and classes of documents that are to be collected by the archives. Historians clearly played a role in the original drafting of this section, as evidenced by the several references to pioneer settlers[74]. Ontario first reinforced its fledgling archives program with legislation in 1923[75].

 

            The Yukon Archives Act is an almost verbatim copy of the Ontario legislation. The list of the objects of the archives is identical but for two small additions concerning oral history of the Aboriginal people and “the stimulation of public interest in the history of the Yukon…”[76]. Like many other provincial statutes, this Act includes an enumerated list of media types. While the legislation specifically refers to Yukon history, a former Territorial Archivist writes:

While the sphere of interest is generally confined within the boundaries of the Territories, the Archives is, to a certain extent, concerned with peripheral regions that are inexorably linked to the Yukon’s past and present[77].

 

This includes border communities in British Columbia and Alaska.

 

Significantly, the definition of public records includes “any such documentary materials that were formerly part of the records or files of any such [government] department, agency or office”[78]. Conceivably, this section of the legislation could be used to sue for the return of government records that have fallen into private custody and ownership[79].  While it is not clear if this legislative provision was used, in the early 1970’s, arrangements were made “for the return of about 40 cubic feet of Yukon Territorial Government records” deposited with the National Archives in the 1950’s[80].

 

            The provisions of the Saskatchewan Archives Act are succinct. The Archives “may acquire… printed documents, manuscripts, records, private papers and any other material to whomsoever belonging, having a bearing on the history of Saskatchewan”[81]. The Archives can also acquire the records of any municipality or school board[82].

 

            The Archives and Public Records Branch of the Manitoba Legislative Library has a similar mandate to that of its neighbor in Saskatchewan. It is empowered to acquire “any document, photograph, or map having any bearing on the history of Manitoba”[83]. “Photograph” is defined to include microfilm and “photostatic negative”[84]. There is also provision for the voluntary deposit of non-current municipal and school records[85]. Elsewhere the legislation establishes the Legislative Library as a depository library for material “prepared, printed, or published in Manitoba”[86]. While not directly part of it, this function relates to the responsibilities of the Archives Branch.

 

            As discussed above, formal archival legislation in British Columbia is virtually non-existent. Other than records management provisions, the Document Disposal Act provides only that:

with the consent of the Provincial Archivist, a municipality, village municipality or school district may deposit any of its noncurrent records or other documents with the Provincial Archivist for preservation in the archives[87].

 

There is apparently no formal provision for the collection of private-sector records or any other material that does not come via the government records scheduling process.

 

            Like the legislation in British Columbia, the Quebec Archives Act makes no formal provision for the collection of private-sector records by the government other than to note that the “Minister is responsible for promoting the preservation and accessibility of private archives”[88]. It is possible for an individual to deposit private archives with Keeper of the Archives Nationales du Québec, but there is no requirement that the Keeper seek out such material. Indeed, there is even a provision that the Keeper may transfer private records to “another public body or an accredited private archival agency”[89].

 

            The collection mandates stipulated in the various pieces of archival legislation are quite diverse. Only New Brunswick clearly makes the distinction between archival records and “library or museum objects”, whereas the Prince Edward Island Archives could conceivably collect records of Federal significance. In contrast, British Columbia and Quebec have virtually no statutory authority for collecting private manuscripts and other non-governmental records. Because of the vague statutory provisions, “archivists are left to apply whatever appraisal and selection criteria they deem appropriate, constrained only by their professional responsibilities to ensure that only the best is kept”[90].

 

Archives and Records Management

 

            The UNESCO model law does not contain any detailed provisions about records management.  It only specifies that various classes of administrative and court records must be transferred to the archives when they “[relate] to matters which have been concluded for more than twenty-five years”[91]. This same broad schedule applies both to federal and state-level records.

 

There is also a requirement that the personal papers, except “those of a strictly domestic nature” of major political and governmental figures be transferred to the appropriate archival repository within six months of their death. The only comparable provision for private records in Canada is in the Quebec Archives Act, which requires that a person holding public office “leave in its custody every document he created or received in that capacity”[92].

 

            With the notable exception of Alberta, the archives legislation in all provinces make provision for records management. There is a range from what is essentially archival legislation with some records management provisions added to the opposite extreme of Records Management legislation with a few archival provisions added on to it.

 

As discussed above, the British Columbia Document Disposal Act is primarily records management legislation that only incidentally establishes the Provincial Archives. The legislation in Quebec is very similar. It is focussed on records management rather than archives per se; it “gives the government the power to suggest approaches to records management to the four thousand public bodies concerned”[93].

 

            Ontario typifies the opposite extreme. Its Archives Act makes no virtually provision for records management other than a requirement that records shall be transferred to the Archives within twenty years after the matter to which they relate has ceased to be in current use[94]. The Lieutenant Governor in Council is empowered to make regulations about record disposal schedules[95]. Ontario had a model records management program but, in the mid-1970’s,

the provincial government partially dismantled the program, taking away control of the operation from the archives and placing much of the responsibility for day-to-day operations back on individual ministries[96].

 

            As it is closely modeled after the Ontario Act, the Yukon Territory statute has similarly limited provisions regarding records management. It only requires that public records be transferred to the archives within thirty years of the date they cease to be in current use[97]. The records management guidelines are established by the regulations issued pursuant to the Archives Ordinance and “combine recognized records management practices from the Ontario and Federal Governments”[98]. Apparently the program in the Yukon suffered a similar fate to that of Ontario in the 1970’s.

 

While it does not take as extreme a position as the Ontario and the Yukon statutes, the Nova Scotia Public Archives Act is primarily concerned with the establishment and management of the Public Archives. Its objects include a duty to “provide reproduction, records storage, and other archival and records management services to public bodies to ensure the effective implementation of this Act, the Government Records Act and related legislation”[99]. There are additional provisions providing that government records shall be transferred to the Archives in accordance with approved schedules, but records management is clearly not the primary focus of the Archives legislation.

 

            Similar to the Nova Scotia act, the relevant sections of the Manitoba Legislative Library Act are mostly concerned with the establishment and management of the Archives. The Act specifies the composition of a documents committee but never identifies its function[100]. Sundry other provisions deal with the destruction and transfer of government records to the archives[101].

 

            Most provinces have adopted a “middle” position, however, rather than one of two extreme alternatives. The New Brunswick Archives Act, for example, serves two main functions.  In addition to establishing the archives, the Act also establishes a Public Records Committee, which has a duty to “advise the Provincial Archivist on matters relating to the retention and disposal of public Records”[102]. Further provisions concern disposal of, and access to, government records. The Prince Edward Island legislation also establishes a Public Records Committee that is responsible for developing records retention schedules[103].

 

Saskatchewan also takes this middle position. As noted above, the Archives Act not only makes provisions for the operation of the Provincial Archives but it also establishes a records management program, which has been described as “a model for others in dealing with provincial records”[104]. While it is somewhat less detailed, the Northwest Territories Act has similar records management provisions. The statute provides for a Public Records Committee that is mandated that “advises the Commissioner on matters relating to the destruction and preservation of public records and public access to public records”[105].                                                                                                     

            The Newfoundland legislation, significantly revised in 1983, has been heralded as a model for other Canadian provinces to emulate[106]. It not only “spells out in detail the scope and direction of archival activities without forgetting recent technological advances in the field of recorded information”, but it also establishes a comprehensive records management program[107]. A specific branch of the Archives is responsible for records management and is under the general supervision of the Provincial Archivist[108]. No other province has as so closely integrated the two related functions of archives and records management.

 

Conclusion

 

            It is clear from the foregoing analysis that one of the fundamental reasons for this great diversity in legislation is that governments simply do not understand the role and nature of archives. Parts of current Canadian archival legislation have changed very little “since the late-nineteenth and early-twentieth centuries when archives emerged as repositories for the preservation of material illustrative of national and regional development” [109]. At that time, no real distinctions were made between libraries, museums, and archives. Much material was gathered by antiquarians who had a passion for things of historical interest but who also lacked any formal training. In the Western provinces, archival activity effectively began in the 1920’s and ‘30’s in the various Provincial Legislative Libraries through the more or less formal interest of their librarians[110].

 

The legislators in Manitoba, for example, still do not appear to recognize the distinction between the Provincial Archives and the Legislative Library as they share both physical space and (arguably) overlapping collection mandates. Likewise, until the recent changes, the Public Archives of Nova Scotia was treated in the legislation as a species of museum, with a mandate to collect physical objects and even maintain monuments and historic sites!

 

There may indeed be situations when it is desirable to combine several functions into one institution, particularly in the current climate of government fiscal restraint. Archivists, however, appreciate the very real danger that “the unspectacular but vital archives function can too easily be sacrificed in a composite historical agency”[111].

 

Many of these old and outdated provisions remain in the current legislation because of a general ignorance of what it is the archives actually does[112]. Consequently, archivists need to take a more active role in lobbying for legislative change. Archivists know far more than legislators about what changes need to be made to the legislation and they have a professional responsibility to influence the shape of the law in this area[113]. Two diverse Canadian examples of where this approach was used are Quebec and the Northwest Territories.

 

            In Quebec, significant changes were made to the proposed Archives Act in response to lobbying by archivists[114]: “by criticizing the bill’s limited vision of archives, several Quebec archivists directly led to the adoption of a broadened definition”[115]. A similar approach was followed in the Northwest Territories where the Territorial Archivist was closely involved in the drafting of an inaugural Archives Ordinance. This was a more qualified success; however, as the eventual end product was the result of several political compromises[116].

 

            While complete uniformity of Provincial Archival Legislation is neither desirable nor probably even possible, there is certainly scope for improvement and modernization in many provinces, particularly those that have failed to provide a solid statutory foundation for their Provincial Archives. Records management provisions have been modernized in most jurisdictions. It is now time for the same to be done for the archival functions.