TIME FOR TALK OVER, BACK TO PROTESTS, BLOCKADES AND COURTS? BC GOVERNMENT PREFERS CONFRONTATION TO INNOVATIVE SOLUTIONS

The one hope, to use the only existing legal mechanism to resolve contentious issues over the destruction, removal or alteration of sacred sites, burial sites and other cultural heritage resources has been squelched by the Province of BC. Again! They have refused to do a pilot project that would use an existing section of the Heritage Conservation Act(HCA) that allows for a First Nation to enter into agreements with the province to conserve and protect heritage sites and objects. This section, section 4, is the only section in the Act that expands the definition to include heritage sites and objects that are of spiritual, ceremonial and other cultural value to the aboriginal people that need protection.

 

Time and again, heritage issues have hit the front page of papers and been the source of conflict between the government, developers, property owners and First Nations. These issues will not go away and when not dealt with, or dealt with improperly, they do not allow for reconciliation or a good working relationship to develop between a First Nation and the government. The Musqueam have been occupying c??sna??m or the Marpole Midden since May 3, 2012 to protect the remains of their ancestors without resolve. Other big headliners: Poets Cove dealing with human remains and the only conviction under the Heritage Conservation Act, Departure Bay dealing with Human Remains, Bear Mountain with the destruction of a sacred cave and I could go on and on…

The BC Government has told the Leadership Council (comprised of the political executives of the BCAFN, First Nations Summit and the Union of BC Indian Chiefs) that the work being done by the Joint Working Group on Heritage Conservation will not proceed as far as a pilot project on a section 4 agreement. The work on this pilot project took a fair amount of the Working Group time to pull together and the concept had been approved in principle by the principals of the group. In February 2011, the First Nations at a conference on Heritage Conservation, approved the pilot project. We have been awaiting final provincial approval since that time-16 months to get the rejection message.

 

Why is the stoppage of the s. 4 pilot project so devastating? The biggest reason and one that is agreed to by those who work in the archaeology branch, is that s. 4 agreements is the only way the contentious issues around heritages sites and objects can be resolved. (when I speak of heritages sites and objects I am being inclusive of sacred sites and objects, burial sites, and other cultural resource sites, landscapes and objects.) The HCA does not protect what it needs to protect because its definitions are limited and the Act allows for the alteration, desecration of damage of a heritage site or object if you apply for and are granted a permit.

The other important point as to why this is such a devastating decision from the Province of BC is that the work of the Joint Working Group on Heritage Conservation has been conducted in good faith, under the direction of the appropriate Ministers and the Leadership Council, and now to be told that there is no willingness to proceed on directed work? Where did the political will go from BC? Why was the time of the 3 Provincial Employees, (including 1 ADM), and the 4 members of the First Nations side of the working group put to waste? Why was the good working relationship that was established at the Working Group just tossed aside? Was the provincial government just keeping First Nations busy at a table that we thought could make progress on to distract us from other things that could have been done? I guess we will never really know.

The working group was put together in 2007 by the BC Assembly of First Nations, First Nations Summit, and the Union of BC Indian Chiefs in conjunction with the province of BC and mandated to provide recommendations to improve the protection, management and conservation of First Nations cultural sites. This was all done in the spirit of the New Relationship and the Transformative Change accord. Interestingly enough, the province has asked to re-engage the Leadership Council on the New Relationship yet backs out of a critical initiative that they approved in the first place and expects that the trust will be there that the province will keep its word? A very big stretch on BC’s part.

I would like to say at this point, as Co-chair of the Joint Working on Heritage Conservation since 2007, that progress has been made on some fronts. We have revised policies of the Archaeology Branch to make them more workable for First Nations and been looking at ways to amend the Heritage Conservation Act. We had a lot of hope for this pilot project as a good way forward as well.

S. 4 of the HCA has been part of the law in BC since 1996 and the BC governments in place since then have refused to utilize the mechanism that was put in place. The Act was amended to include s. 4 at that time due to the Supreme Court of Canada ruling in Delgamuukw which ruled that the provincial government did not have the constitutional authority to extinguish aboriginal title. (Delgamuukw v. BC (1993) 30 BCAC 1) This case led to extensive negotiations between the province and First Nations representatives which produced a number of initiatives including adding s. 4 to the HCA.

What are some of the issues the province has with S. 4 of the Heritage Conservation Act? They base their opinion on a very dated and conservative legal opinion solicited in 2006 after pressure from First Nations. The legal opinion basically states that there is no legislative framework for a First Nation to administer its own heritage protection and s. 4 is not sufficient to do that. Well, why was a section put into a valid Act if it did not provide that legislative framework? The agreement would provide the framework to do so.

The other issue that BC positively does not like is s. 4(4)(e) that allows the Minister to delegate his authority to First Nations to issue or not issue permits under s. 12 and 14 of the Act. The legal opinion states that if delegation was meant to happen, the Act would clearly have stated so and the Minister’s authority cannot be fettered. It seems to me s. 4 of the Heritage Conservation clearly does give that authority. The Local Government Act provides authority to Local governments to issue the same types of permits so this should not be a problem of fettering the Minister’s authority. The argument we hear back is that there is specific authority under Part 27 of the Local Government Act that allows for that.

Further on the fettering issue, relating to s. 4(4)(d), the Minister has authority to authorize activities that would otherwise be prohibited by the HCA. The Minister has to exercise discretion when making these decisions and ensure they are exercised in a manner consistent with the purposes of the Act. Purposes of the Act are simply “to encourage and facilitate the protection and conservation of heritage property in BC.” (s. 2 HCA) Because this subsection allows a First Nation to do this, it is seen as taking away from the authority of the Minister and bottom line may be the government thinks First Nations can’t make decisions that would uphold the purposes of the Act. What First Nation would not want to protect and conserve heritage property in BC especially their own?

At the working group level, we had offered to work through all the concerns of BC and find ways to address them through the pilot project- that is what a pilot is for after all! We were sensitive to the issues being raised by BC but now we find the province doesn’t even want to try to address these issues.

What bothers me most of all about all of this is that the province does not have any alternatives to s. 4 for all First Nations in the province. They have no plan to go forward other than to have to deal with every situation arising from First Nations on a one off basis. They will continue to see their inability to deal with these issues splashed across headlines in the media, on the internet and face protests, blockades and court cases. First Nations are left with no options now that the province has bailed on an effective working Group. They will be further plagued with the kind of reporting that questions the “sanctity” of private property and allegations that “collective rights of First Nations” take precedence over private ownership as has been the case of some reporting around the Musqueam situation. Reports that forget aboriginal title still exists on private property in BC.

I also have to add in here that the province has selected a few First Nations (as is their style) to work on cultural heritage issues. For example, the Haida Gwaii Reconciliation Act allows the Management Council established under the Act “to establish policies and standards for the identification and conservation of heritage sites within the management area. The management area does not include reserve, municipalities or private property. The Taku River Tlingit has also entered into a Shared Decision Making model with the province so that there are processes in place for making decisions that will affect cultural sites. http://www.newrelationship.gov.bc.ca/shared/downloads/Unsigned_SEA_TRTFN-BC_LRMSDM_Agreement.pdf. There are a few other models out there that address heritage conservation in one way or another. The point of this is that the province picks and chooses which First Nation it will enter into innovative solutions with. They have created other tools other than s. 4 of the Heritage Conservation Act to deal with the management and protection of Heritage sites and objects but do not do it generally for all First Nations.

The province of BC has had 16 years to amend, delete, or replace s. 4 of the Heritage Act to address their concerns but has chosen not to. Instead they have left it in the legislation as something to hang in front of First Nations as a carrot to deal with critical issues such as the remains of our ancestors. They have left s. 4 in the act as a means of frustrating First Nations that they will not work with something that was negotiated by government and First Nations as a way to resolve sensitive and important issues. Now we can add to that list that they have left in s. 4 as a way to occupy a working group to put in place a model to see if s. 4 could actually work.

This latest decision of the province is frustrating beyond belief. It only has First Nations shaking their heads and saying, talking and collaborating are a thing of the past, guess we are back to protesting, blockading and maybe court. When did we step back into the dark ages, thought we just turned the clocks back an hour, not a century.

Note: At the time of the writing of this blog, the First Nations have withdrawn from the Joint Working Group on Heritage Conservation. www.ubcic.bc.ca/News_Releases/UBCICNews11011201.html#axzz2BgS2tPBh

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