BC's rogue archaeological bureaucracy a threat to private property rights

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Appeared in the Victoria Times Colonist and Calgary Herald

Canada is a prosperous county and one critical reason for that is our mostly secure approach to property rights. For example, when governments expropriate private property for some public purpose, a well-established tradition in law exists whereby owners are compensated. No one expects someone to give up their home for free to facilitate a highway expansion.

However, a glaring exception has arisen. In British Columbia, the province’s archaeological branch continually demands owners of property designated as archaeologically significant pay for archaeological work before any redevelopment can proceed.

Such work is not cheap but a new court decision gives hope that British Columbians may soon face a more balanced approach from the province, one that respects the fact much of people’s life savings are tied up in their property.

In 2006, Wendi Mackay and her late husband purchased property in Victoria from her parents (who bought the land in 1985 and built a home on it). The Mackays planned to demolish the existing home and replace it with a new one.

This is where they ran into a problem. The archaeological branch refuses to list site designations on land titles, and thus a new buyer would never know there was an issue. As there was no heritage designation when Mackay’s parents built the original home, Wendi Mackay and her husband only later discovered their property was part of a newer “undesignated” heritage site when their architect liaised with the archaeological branch. (Such sites are protected by the 1996 Heritage Conservation Act.)

The result was a plethora of extra inspections, permits and archeological work at Mackay’s expense. The initial bill was $67,000 but the archaeological branch wanted even more work, worth another $50,000. That is when Wendi Mackay stopped paying and sued the province. She has claimed roughly $600,000 in damages because of additional costs resulting from obtaining the site alteration permit, construction delays, and lost value to the property.

In a recent landmark judgment by the Supreme Court of British Columbia on the Mackay case, Justice Gerow found departmental officials had “no statutory authority to require the petitioner to pay for a heritage inspection or heritage investigation under any circumstances.”

The existing B.C. Heritage Act allows the Minister of Forests, Lands and Natural Resource Operations (the ministry in which the archaeological division is ensconced) to order someone to incur archaeological costs. The law does not allow staff to make such an order.

The MacKay story is not the only one where private property owners were illegally forced to ante up by the archaeological branch.

In 2010, an elderly couple from the Parksville area, Louise and Hereward Allix, wanted to build a one-storey house because they had difficulty with the stairs in their existing two-storey home. When they applied for a development permit, they were told to first pay for an archaeological dig. The initial estimate was $4,000; the final price tag was $35,000, not inconsequential for an elderly couple on a fixed income and in ill-health.

In Kamloops, owners of the Harper’s Trail Estate Winery/Thadd Springs Vineyard have a similar story. Ed and Vicki Collett have already spent $250,000 to comply with the archaeological branch’s previous directives, and estimate another $40,000 in costs yet to come. And in a high-profile case involving private property in Vancouver (where protests from the Musqueam First Nation band blocked development for the past year), the initial estimate for the archaeological dig was $130,000 but it ended up costing $400,000.

This will be an ongoing problem in B.C. The archaeological branch catalogues 38,927 property sites in the province as archaeologically significant, with 11,300 new sites added since just 2005. The branch did not provide a breakdown on how many of those apply to private land. As Mackay and others have discovered, owners of such sites face a potentially ruinous bill down the road for any necessary archaeological dig.

The provincial government has options. It could modify its own legislation and give the archaeological branch the explicit authority to demand private property owners pay for archaeological digs. That would make what the archeological branch has been up to “legal” but it would not be reasonable for property owners.

More sensibly, the province should allow for redevelopment on private property to proceed by ensuring found archaeological deposits, remains and artifacts are removed, as has been the normal practice in most cases. (That has not been the case in the Marpole property.)

Second, a government that desires archaeological artifacts should pay for the cost of uncovering them. Akin to compensation for financial injuries that results from expropriation, costs that result from regulation are similarly injurious to private property owners.  A government that deems archaeological finds as publicly significant should not burden private property owners with the priorities of the archaeological branch, a branch that has thus far acted illegally.

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