The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Mark Milke Headshot

Is It Open Season On Private Property In B.C.?

Posted: Updated:
Print Article

The federal and B.C. governments have always claimed that native land claims would never affect private property, that First Nations governments would never have veto power over private land.

Right. Tell that to a retired 70-something couple from Vancouver Island, Gary and Fran Hackett, who face a Caledonia-like entanglement with their land. Their property in Vancouver's Marpole neighbourhood, which was in their family for almost five decades, has just been frozen. That was due to the discovery of assumed aboriginal bones.

When the Hacketts decided to retire a few years back and build condominiums on their property, they deliberately reduced the land cost as part of their partnership deal with a developer. The goal was to sell affordable condominiums. With smaller units at under $230,000 and an average price of $329,000 (reasonable by Vancouver standards), it is why 81 out of 108 units were pre-sold until "the troubles" began earlier this year.

In January 2011, the Hacketts obtained the necessary development permit from Vancouver. In December that year, the province issued permits to recover and record any culturally significant finds, including human remains. Both governments knew that the land contained potential cultural deposits from aboriginal activity that pre-dated 19th-century European settlers.

The Hacketts paid for the archaeological dig themselves, as indeed every private property owner in B.C. must. The initial estimate for the dig was $130,000; archaeological costs to date exceed $500,000.

The provincial permit granted to the Hacketts was clear that any remains would be moved elsewhere as it wasn't practical to keep them on the property. "Articulated human remains" will be subject to a "careful and respectful removal" and "will be re-interred or relocated according to the wishes and protocols of local First Nations," read the permit.

When their archaeologist found skeletal remains in one small corner earlier this year, that's when problems arose for the Hacketts.

Protests from the Musqueam First Nation and others started in March. One May demonstration shut down the nearby Arthur Laing Bridge in the morning commute for two hours. Almost predictably, non-aboriginal politicians and the police ran for cover; aboriginal politicians have made this a cause celebre, and at the expense of private property owners.

SACRED GROUND

The protests have been animated by the discovery of intact partial skeletal remains of two infants and partial disarticulated (in essence, unattached bones) of one adult and child.

It is understandable that some feel every bit of ground is sacred. But that over-romanticizes matters. This is not a recent graveyard with headstones identifying one's near relatives.

Every human community in history is eventually built over past inhabitants. Paris is built over crypts that contain six million skeletons. Most were re-interred from above-ground graveyards in the late 18th century for health reasons and to make way for a growing city.

Back to the Marpole remains: The intact burial area is in a two-metre by two-metre wide plot that sinks just five-eighths of a metre. (Fragment remains were also found in a relatively small, already-disturbed area). That represents 0.113 per cent of the surface area. The city has refused to issue a building permit based on "the public interest"; similarly, the province denied the extension of its own earlier permits after the Musqueam protests.

The Hacketts and their developer partner could re-apply for permits to develop part of the land. That would be costly, cumbersome and a high-risk gamble given the protests and political shenanigans. In effect, 99.887 per cent of their land has been frozen.

The reasonable compromise is to move the remains. It has happened before. In 2006, human remains suspected of being up to 2,500 years old were found at a Nanaimo building site. The bones were transferred to the Snuneymuxw First Nation who said they would "bring it back to our community and do the proper ceremony." The City of Nanaimo supported the reburial process.

A 2008 reference in provincial permit archives makes reference to another relocation of remains, this within Montague Harbour Provincial Marine Park on Galiano Island. There are other examples in British Columbia.

When aboriginal claims crop up, especially related to previous habitats and human remains, reason can easily be sacrificed to emotion. But the proper balance is to respect such human remains and to respect private property.

The Marpole remains should be removed respectfully and reburied as has already happened elsewhere in British Columbia; the protests should end; the development should proceed.

That would be a reasonable outcome, unless the City of Vancouver, and the B.C. and federal governments now wish to signal that it is open season on private property in British Columbia. And if that is how they feel, they should compensate the Hacketts for the value of their land plus their substantial costs already incurred. Private individuals should not have to pay for government cowardice.