When First Nations Burial Sites and Development Collide
By Judith Sayers, Maureen Grant, Dave Schaepe, Robert Phillips and Murray Brown, TheTyee.ca; originally ran on 18 August 2014; reprinted with permission.
First Nations burial sites on private property are front and center again. This time it is Grace Islet in Salt Spring Island's Ganges harbour where a property owner wants to build his home over gravesites.
Previously, the issue of the Musqueam First Nation and c̓əsnaʔəm (also known as the Marpole site) dominated the news for many months in 2012 and 2013 until the Musqueam purchased the property from the developer.
Throughout the Musqueam dispute the province stated it had no tools to deal with the situation. In reality, there are many tools available under the common law and the Heritage Conservation Act (HCA); B.C. just doesn't want to use them. The HCA provides for denial of permits, agreements for First Nations to manage their own heritage sites, and even for purchase of sites to protect them. After the Musqueam situation was resolved, the province did not bother to work with First Nations to activate the available tools or find new ones to avoid similar conflicts in the future.
We see the same tragic and unnecessary story unfolding at Grace Islet. Provincial Minister Steve Thomson stated B.C. is taking all precautions necessary to ensure the landowner "works around" the burial sites, and that this is set out in permits. However, recent photos show cement foundations and walls built on top of three of the burial cairns. Obviously, there is no provincial monitoring and the permits are "toothless." No charges have been laid for the violation of the permits.
Similar stories are playing out in the densely populated Fraser Valley on Sumas Mountain, the Chilliwack Valley and elsewhere. This will happen again and again as there are hundreds of First Nation burial sites. B.C must deal with this.
Protection as Colossal Failure
Historically, First Nations created burial grounds as part of their continuous occupation of the land. Unfortunately, B.C. parceled out private property over top of First Nations' burial grounds. In 1867 B.C. passed the Indian Graves Ordinance protecting "Indian Graves" from disturbance by settlement and claiming ownership of burials as "property of the Crown." Under federal law and policy, burial sites were supposed to be protected as Indian reserves but most were not. Canada and B.C. tried to pass legislation to take control of First Nation cemeteries to "protect" them. This protection has been a colossal failure.
Currently, the minister has the power to suspend, amend or cancel alteration permits once issued in certain circumstances. Suspending permits gives the developer more incentive to work with the First Nations to find solutions. With Grace Islet he has refused to use these powers. In his editorial to the Times Colonist dated July 23, 2014, Minister Thomson says that First Nations burial sites are not protected because they are not a cemetery under the Cremation, Interment and Funeral Services Act. You have to be an "owner" of a cemetery to have it included under the law.
We invite Minister Thomson and the provincial cabinet to review the Supreme Court of Canada's ruling in the Tsilhqot'in title case. The court granted the Tsilhqot'in title to nearly one million acres of land. This was based on the Tsilhqot'in's use and occupation of the land prior to the establishment of Canada. Burial sites were recognized as part of the title area. For example, the trial judge stated "Xexti is a Tsilhqot'in burial place near Xexti Biny (Nemiah Lake). It is not on reserve... generations of Setah family members are said to be buried at this site dating back to Old Sit'ax (Louie Setah)." We further expect at the Sept. 11 meeting between Premier Clark, her cabinet and B.C. chiefs that substantial dialogue will occur with respect to the implementation of the Tsilhqot'in decision and the provincial government's approach to Aboriginal title territories and protection of First Nation heritage sites.
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