Rob Shaw: B.C. laws leave landowners alone with costly discoveries of Indigenous remains

Expensive find for owners

Photo: Mike Wakefield / North Shore News

Recent courts rulings have reshaped property rights in B.C., according to one MLA.

A Kamloops landowner has learned an expensive lesson that most British Columbians don’t even know exists: if you dig on your own property and uncover Indigenous remains, you could be on the hook for six-figure costs, with no help from the government and no clear way out.

Their experience should serve as a warning to anyone who assumes private property still means what it used to in the province.

In the Kamloops case, in just seven months, the discovery has triggered more than $100,000 in legal and archeological costs on an empty parcel of land assessed at $440,000. The Tk’emlúps te Secwépemc have demanded more than $80,000 in additional fees, including 24-hour security provided by them at roughly double the normal rate.

At the same time, the property has been declared an untouchable “sacred site” locked behind layers of provincial red tape and bureaucratic delay—all while duelling archeological reports suggest the two skulls in question may not have originated on the property at all, but were dumped there many years ago as imported fill under a previous owner.

It is, for many, a nightmare scenario. Start a small project in your backyard, only to hit an ancient object or bone that predates you by hundreds of years but nonetheless puts you on the hook legally for a mountain of costs, without help from any level of government.

“It shows there’s a lot of vulnerability in private property ownership at the moment, with really a limited access at this point to full disclosure and information about what’s happening,” said Independent Surrey-Cloverdale MLA Elenore Sturko, who has been trying to help the property owner.

“Where is the balance?”

The problem isn’t about treating Indigenous remains with care, it’s about the province’s legal framework that effectively transfers the full financial burden of that care onto a private citizen, with no transparency, no appeals and no compensation.

The property owner found two skulls on June 13 while landscaping a relatively small empty lot to act as a community garden for seniors at a neighbouring seniors home.

The RCMP and coroner were notified, who told the Tk’emlúps te Secwépemc nation, which by the end of that same day had registered the land as an archeological site and issued a press release about the “ancestral remains” on the property “now considered a sacred site” in part under the Declaration on the Rights of Indigenous Peoples Act.

Soon, the bills started arriving, everything from the cost of a smudging ceremony, to digging equipment, to the requirement of 24-7 “culturally sensitive” security from the nation (at twice the cost of a normal security rate), said Christine Elliott, a lawyer hired by the property owner to handle the details.

No one from the city, province or federal government offered to help pay anything.

“My calculation at the time was, ‘Oh my god, we will have soaked through 100 per cent of the value of the land in one year,’” said Elliott.

The Tk’emlúps te Secwépemc were able to get a “site alteration permit” to exhume the remains from the B.C. government’s Archeological Brand within 24 hours of applying in August. But that same office took more than two and a half months to respond to questions from the landowner, said Elliott.

The owner hired their own private archeological firm to assess the land. Gordon Mohs, who has 40 years of archeological experience in the Secwepemc territory, concluded the skulls were part of a sand layer covering two-thirds of the site that had been imported as fill some years prior.

“My professional assessment, based on the preliminary field inspection I conducted, is that the archaeological deposits … were contained within sand fill deposits imported and deposited on the [property],” he wrote in his report. No other archeological remains were found.

The owner allowed the Tk’emlúps te Secwépemc to access the site to exhume the remains in October. But they refused to pay any of the nation’s fees. A short time later, an unknown party made a complaint to the Heritage Conservation Branch that the site had been tampered with.

The owner and Mohs now find themselves under investigation by a government Natural Resources officer. They insist they did nothing to the site, other than Mohs’ professional assessment. It has been locked and under watch of a security guard since the discovery.

Tk’emlúps te Secwépemc chief Rosanne Casimir did not respond to a request for comment.

The property owner has abandoned plans for a community garden or anything on the land, and intends to leave it vacant, said Elliott.

Still, the property sits under a cloud of incredible confusion—the nation has declared inherent title as well as cultural site status, and it has also claimed a buffer zone around the property that impacts adjacent lots. The area is now registered as an official archeological site with the province, even though the remains are gone.

The land’s sale value is questionable, at best. Any development would first require inspection permits, archaeological impact assessments and other bureaucratic hurdles from the B.C. government, all paid for out of the private landowner’s pocket.

“You are on your own as a private landowner,” said Elliott. “There’s no ability to claim this from the province.”

For Sturko, it’s another example of how the NDP government’s reconciliation framework, particularly under DRIPA, has quietly reshaped property rights in B.C. without clear rules about who pays when those worlds collide.

It builds upon last year’s Cowichan Nation court ruling that Aboriginal title is superior to private property rights, and the Court of Appeal ruling last year that DRIPA can be used to strike down provincial laws.

Premier David Eby has said he’s preparing amendments to protect private property rights, but it’s not clear if any of that will address the immense costs that face private landowners who stumble across ancient archeological finds.

The B.C. government does maintain a database of heritage sites on private land, called the Remote Access to Archeological Data (RAAD), but it is only accessible to First Nations and registered archeologists. The general public can’t access it, for fear from the province that they might loot those sites for valuable artifacts. Buyers and sellers have to assume enormous liability for risks they can’t discover in advance.

“We need to somehow be able to balance this situation with letting people understand any kind of risk and liability that goes along with purchasing a property that is surrounded by archaeological finds,” said Sturko.

“The government, I think, needs to do a better job of allowing people access to this information, and then also how do we deal with this situation when these types of finds are located.”

Allowing the current situation to stand, where private owners foot enormous bills for historical remains they were unaware of and had nothing to do with, could eventually cause people to destroy or hide any remains they find in order to avoid the burden, said Sturko.

“This government is so super-secret all the time, and constantly doing stuff out of the public view, most people don’t even know it’s a thing,” she said.

In the meantime, the Kamloops land remains in limbo.

Elliott said she has included Eby and Forests Minister Ravi Parmar in some of her letters objecting to the process. Neither has responded.

“We sympathize with the property owner as this is a complex case,” the Ministry of Forests said in a statement.

Not really, though. The message from the NDP government is clear: If you are unlucky enough to uncover history on your own land, you alone will pay the price for it.

Rob Shaw has spent more than 18 years covering B.C. politics, now reporting for CHEK News and writing for BIV. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio.