The province of British Columbia has a rich and complex history of land ownership involving both longstanding aboriginal rights and private property rights that were introduced after the arrival of European settlers.
Sometimes, as in the current case on Grace Islet near Saltspring Island, where a private property owner has applied to build a house near an ancient burial site, these two very important principles can overlap and require a compromise solution.
Grace Islet, as well as nearby Ganges Village, is a known archeological site and was registered as such in 1974.
However, it is privately owned, and local government zoned the land in that area for residential use. The current owner, who purchased the property in 1990, received water and sewer permits from the Capital Regional District in 1991, as well as a building permit from the CRD this year.
It’s important to note that B.C.’s Cremation, Interment and Funeral Services Act applies only to burial sites that have been registered as cemeteries by the owner of the land, which puts Grace Islet in a separate category from registered cemeteries.
The province does not have a role in zoning or the issuance of building permits. However, B.C.’s Heritage Conservation Act recognizes the importance of First Nations’ heritage and the province’s obligation to protect First Nations’ archeological sites, while respecting the rights of private property owners.
Under the act, land users are required to conduct archeological-impact assessments in areas with suspected or known archeological values. As well, developers must receive site-alteration permits from the archeology branch, which are designed to ensure development in archeologically sensitive areas does not negatively impact archeological values.
Over the past eight years, the Grace Islet application has involved hundreds of hours of staff time and hundreds of pages of correspondence among ministry staff, the proponent, qualified archeologists and affected First Nations.
During 2006 and 2007, the property owner conducted an archeological impact assessment, which involved notification and a request for comments from 11 local First Nations, only one of which responded.
In October 2011, following a redesign of the property to avoid known burial cairns, a site-alteration permit was issued.
As with all archeology branch site-alteration permits, First Nations were consulted. The initial alteration permit was amended and re-issued in September 2013.
As part of the consultation, branch staff met twice with First Nations, including a community meeting, and permit conditions now require that a qualified archeological monitor be onsite during any ground disturbance. The monitor will be there to ensure that grave cairns are not disturbed in any way.
In addition, through a property covenant registered on the title, the cairns are to remain undisturbed into the future.
The project on this property will be subject to further inspection by the province’s archeology branch, to ensure permit compliance.
Government is acutely aware of and respects the value of First Nations spiritual and heritage sites, both to aboriginal people and society in general.
We also understand these are highly sensitive matters. However, since the landowner has acquired all the legally required permits, including the building permit from the CRD, the province is not in a position to unilaterally cancel or suspend the alteration permit in the circumstances of this particular case.
B.C.’s Heritage Conservation Act does not give the province the authority to expropriate property.
These kinds of disputes are better left to good, open dialogue and communications by the involved parties. I certainly encourage more direct discussions among the stakeholders on this issue.
Given the province’s aboriginal history, as well as prudent management of taxpayer dollars, it is not fiscally practical for the province to purchase every piece of property that may contain human remains.
The decision to issue site-alteration permits for Grace Islet strikes a balance between the rights of the private property owner and the province’s obligation to protect First Nations archeological sites.
Steve Thomson is B.C.’s minister of forests, lands and natural resource operations.
