November 2013

Permits for development over First Nations’ burial grounds raise the question: Would the government ever say “no”?

IN THE HEART OF VICTORIA lies a peaceful sanctuary of century-and-a-half-old gravestones and trees called the Pioneer Square Cemetery, the “Old Burying Ground” for pioneer families. Currently underway are respectful repairs to its gravestones, paths and landscape. Meanwhile, Grace Islet, a tiny picturesque ancient Coast Salish burial site amongst ancient oaks and juniper, just off Salt Spring Island shores, lies desecrated by proposed residential development. 

British Columbia’s Archaeology Branch, after a year of deliberation, chose Reconciliation Week to extend a provincial heritage site alteration permit to an Albertan businessman so he could build his luxury waterfront vacation home atop this First Nation cemetery.  

The alteration permit enables him to build his house on posts over the burial islet, with the intention of “preserving” the ancient burial cairns underneath the house footprint, patio decks and landscaping. This permit was issued despite the strongest objections from many local Coast Salish First Nations. Chief Earl Jack of the Penelakut Tribe called the proposed building atop the cemetery “a cynical and vulgar notion.” 

Grace Islet, part of the large ancient village of Shiya’hwt waht at the head of Ganges Harbour, has long been a recorded archaeological site. An archaeological assessment study confirmed two separate locations of ancient human remains and at least 15 other burial cairn features amongst the camas lilies of this half-hectare rocky islet.

Last July, the Penelakut Tribe wrote a complaint to the Salt Spring Island RCMP about the property owner’s reported bulldozing and clearance of the burial islet. Archaeology Branch staff confirmed the land clearance was in breach of existing permit conditions. In a subsequent visit to Grace Islet, First Nations documented the desecration—the vegetation and soils stripped to bedrock by use of a small excavator, and several burial cairns left pedastalled within the proposed house footprint. 

In his letter this June to Minister Steve Thomson, Chief Jack repeated his request for “upholding our customary laws, beliefs and aboriginal rights to protect our ancestral dead from further disturbance by private development at this burial islet.” Considering the whole islet to be an ancient and historical First Nation cemetery, he pleaded “We believe this sacred place must be publicly respected and preserved, not allowed by your Ministry to be developed and desecrated.” 

As archaeologist Eric McLay, a specialist in Coast Salish heritage, stated after the permit was issued, “There is a perceived fundamental discrimination against First Nations peoples in such bureaucratic decisions by the Archaeology Branch—that First Nations people and their deceased ancestors aren’t being treated like human beings, but objects that can just be dug up, bulldozed and built over with no consequences. The message sent to First Nations is that they aren’t equal, that their heritage sites—even their cemeteries—aren’t worth preserving, and don’t deserve respect, even long after death.” 

Archaeology Branch Director Justine Batten, in a written response to Focus’s question on the branch's interpretation of the Heritage Conservation Act, states the goal is to conserve heritage “but in a reasonable balance with other land uses.” One wonders what type of development in one of Victoria’s pioneer cemeteries would be considered reasonable by the Archaeology Branch.

Batten claims that in the Grace Islet case, “the landowner had the requisite permit, redesigned his house to ensure there would be no contact with any of the rock features that are believed to be burial cairns and a restrictive covenant will be registered on the certificate of title to ensure future owners of the property have notice of the presence of the site.” But change “rock features”to “gravestones” and “the site” to “Pioneer Square Cemetery” and one can understand the moral outrage felt by Coast Salish peoples.

Batten states her mandate is “to achieve a compromise acceptable to both that allows the development but protects the contents of the archaeological site to the extent possible.” At Grace Islet , no compromise was acceptable to First Nations. As Penelakut Elder and hereditary grave worker August Sylvester stated, “This is a shmukw’elu—a cemetery—a place to take care and avoid out of respect for the dead and their spirits.” Batten’s response is, “If the protection sought is more than avoidance and the desire is to preclude any alteration of the lands, then purchasing the property may be the best solution.” The Penalakut Tribe had appealed to Minister Thomson last year to assist in a purchase to preserve Grace Islet as a memorial parkland or cemetery, but the province dismissed the request due to lack of finances. Buying back the burial site themselves would be especially galling considering Coast Salish people never relinquished title to Grace Islet in the first place.

Yet buying back a burial site is what the Musqueam First Nation was recently forced to do at the Marpole village site in Vancouver—another ironic Reconciliation Week announcement. Wade Grant, councillor of Musqueam, described his mixed feelings that this ancient village and burial ground—long ago designated a National Historic Site—had to be purchased with $4.8 million that the Musqueam had received as part of a separate payment from the Province for other projects in Vancouver. As part of the sale agreement the Province also provided $5.3 million directly to the property owner for foregone development costs.

This purchase came after the Musqueam had exhausted all other political avenues to protect the site from a proposed $100-million condominium development, including a six-month occupation of the site, a blockade of the Arthur Laing Bridge, the lobbying of the premier’s office, public petitions, an intensive social media campaign, and countless meetings and negotiations over a year.

Grant said the Musqueam attempted, unsuccessfully, to implement Section 4 of the Heritage Conservation Act, which is a special enabling power that the Province could have used to protect the burial site. The Province’s response to why they didn’t use Section 4 was that, “A working group has been formed to look at the feasibility of developing a mandate to implement Section 4 of the Heritage Conservation Act. This work is not completed and no Section 4 agreements have been developed to date.” 

Grant questions why “a 1000-year-old Viking burial site is declared a World UNESCO Heritage Site while a much older Musqueam burial site is declared an inconvenience.” For Grant, the Marpole site in the heavily urbanized Vancouver location is the “last undeveloped heritage site of our traditional Musqueam culture—as much part of Canadian heritage as Viking sites.” 

The Musqueam purchase is the latest in a series of high profile burial site fiascos. The destruction of the burial site at Poet’s Cove on Pender Island in 2006 led to the first fines for altering without a permit, but still resulted in what was called by Robert Morales, chief negotiator for the Hul’qumi’num Treaty Group, “one of the worst desecrations of an aboriginal burial ground by development in the recent history of Canada.” 

A year later, the Snuneymuxw First Nation was faced with the destruction of the Departure Bay burial site. The site wasn’t issued a stop order until 80 individuals had been dug up and the premier was directly lobbied. The Province eventually withdrew the permit and protected the site directly by providing the $2.5 million in funds to buy it. 

Such effort required to preserve First Nation heritage places in BC is worrying. Archaeologist McLay says a chronic lack of political will and investment to uphold the principles of the provincial Heritage Conservation Act over the past decade has led to this crisis. The dismantling of the BC Heritage Trust in 2003 led to the current absence of any role for government to publicly invest in provincial heritage site conservation, research, education or heritage site stewardship across the province. 

Despite strong legislation, the Archaeology Branch’s narrow interpretation of the Act has had the effect of aiding development of archaeological sites rather than conserving them. The lack of any provincial policy or guidelines on decision making over the issuance of alteration permits is of key concern and has led to what McLay calls a “morally-bankrupt” system: “they have no principles, policies, or ethics to responsibly ground a decision to ever say ‘no’ to development—site preservation is always an ad hoc political decision, often made after-the-fact of development.” 

When designated ancient burial sites and National Historic Sites are greenlighted for development, then our provincial heritage law is rendered meaningless—which means Pioneer Square Cemetery might not be far behind.

McLay suggests we need to move beyond existing narrow bureaucratic thinking and implement new mechanisms other than “permits” to regulate—for instance, a provincial heritage legacy fund to help negotiate the purchase of archaeological sites in conflict with development, or an independent provincial heritage advisory board to study, provide advice, and report on current provincial heritage issues. Otherwise, cautions McLay, the status quo will continue where “no First Nation’s archaeological site is safe from the wrecking ball.” 

Reconciliation Week might have started to build some public awareness of the extent and depth of systemic discrimination of First Nations peoples, but there is a long way to go. 

Briony Penn PhD has been reporting on the environment since her first article in The Islander in 1975 on Garry oak meadows and has been a columnist in Victoria publications since 1993. She lives on Salt Spring Island.