“The land owner was kept in the dark, has no control over the situation and is now trapped in a process that could take years.”
—Elenore Sturko
Private citizens in British Columbia are on the hook for thousands, tens of thousands or even hundreds of thousands of dollars in fees if they accidentally discover ancient artifacts or remains on their private property.
That’s the takeaway after a week of intense provincial debate on the issue, following the horror story of a Kamloops property owner who found two ancient skulls while trying to build a community garden and is now facing $100,000 in legal and archeological fees, as well as a demand from First Nations for
$80,000 in smudging ceremonies, culturally sensitive security and excavation costs.
The lawyer for the owner estimates the entire value of the $440,000 property could be eaten up within a year, without any help from local, provincial, First Nations, or federal governments.
While it might sound outrageous that private property owners are responsible for artifacts that predate them by hundreds of years, that appears to be how B.C.’s laws are currently designed, according to Premier David Eby.
‘Not a functional system,’ says Premier
“We’re operating under a Heritage Conservation Act that’s been in the province for, I don’t know, 40 or 50 years,” Eby said Wednesday, when I asked him about the case.
“It’s always operated the same way. It continues to operate the same way. And it is not a functional system for modern demands.”
Eby linked the Kamloops case to the need to reform the Heritage Conservation Act. But his government paused changes to that law this week, amid backlash from local governments and the resource sector.
The proposed changes would expand Indigenous authority and decision-making and boost protections to First Nations historical artifacts, including for “intangible cultural heritage,” but were criticized for adding red tape, costs and delays to projects on the land base.
“I think cases like this give us the opportunity to ensure that the act works for British Columbians and also achieves its purposes,” said the premier.
“If you’re digging in your garden and you have the misfortune of uncovering an ancient indigenous archeological site, there are going to be consequences that flow from that.
“As a provincial government, though, what we can do is look at, how do we help manage costs? How do we help manage those consequences, to reduce the impacts on that property owner and that we also protect the amazing heritage of this place that we live in.”
Changes to law paused, but landowner still stuck with bills
The proposed (and now delayed) changes to the Heritage Conservation Act do not appear to address costs to private landowners who encounter bones or artifacts, nor do they oblige other levels of governments to pick up the tab.
In the case of the Kamloops owner, an outside archeologist hired at the owner’s expense determined the two skulls had been included in a layer of fill dumped on the property some years prior under a previous owner, and did not originate at that site.
Nonetheless, the Tk’emlúps te Secwépemc Nation declared the private property a “sacred site” and exhumed the remains under what it says are its rights under the Declaration of the Rights of Indigenous Peoples Act and provincial heritage laws.
T’kemlúps chief says province should support costs
Chief Rosanne Casimir said in a statement she sympathizes with the property owner, caught in the current system.
“BC’s Heritage Conservation Act governs any work we do on the site,” she said in an email. “We recognize there are gaps in the act that leave private property owners vulnerable to costs. We (are) advocating for changes to address such gaps.
“Tk̓emlúps te Secwépemc advocates for the government to change its policies to support private property owners with the costs associated with such finds. Without government support, other private property owners will be discouraged to come forward if they find remains.”
The nation believes the skulls have been on the sites for a “considerable time,” she said, though the property owner hired their own archeologist who said he thinks they were dumped there later as part of fill from another site.
Premier questions ‘sacred site’ designation
Eby said he does not consider the sacred site designation valid under DRIPA — a sensitive subject, because he’s also promising to amend DRIPA to address unintended consequences from a Court of Appeal ruling last fall that says it can be used to strike down other provincial laws.
Eby likened the obligation a private landowner faces if they discover historical artifacts as the same as finding a leaking oil tank or old toxic waste.
Independent Surrey-Cloverdale MLA Elenore Sturko, who has been trying to assist the Kamloops owner, said the premier’s comparisons fall short, because in those cases expert companies can be called in to assess the situation and offer plans to remediate.
Kamloops property may now be worthless
In Kamloops, the property owner can’t get information from the province or First Nation on what to do, yet is expected to pick up the costs of excavating, exhuming and guarding the property. Plus, the owner is now stuck with a property designated an archeological site that might be unsellable and worthless.
“In this case, the land owner was kept in the dark, has no control over the situation and is now trapped in a process that could take years,” said Sturko.
“Not to mention the financial impact quickly becoming unmanageable.”
She called on the province to provide transparency, a compensation structure and a system that treats landowners with respect as partners and not problems.
Eby called the current law “an act that isn’t working for anybody.”
But nobody is putting any solutions on the table to address a case like the one in Kamloops, including the NDP government.
What is left, instead, are unanswered questions.
“I think that it does give us a concrete case that we can look at as that reform work is being done,” said Eby. “Are there ways to minimize impact?”
Maybe that’s a rhetorical question. But everyone is looking to the premier for an answer.
Note: This column was updated on Jan. 22 to include a statement from T’kemlúps Chief Rosanne Casimir.