In Victoria's Ross Bay Cemetery, the most popular stop for visitors is the modest gravestone of acclaimed artist Emily Carr, who died 70 years ago. Other permanent residents here include coal barons and penniless gold prospectors, suffragettes and eccentric politicians, each with a story to tell. The layout of the cemetery itself offers a glimpse into the city's past: Grand mausoleums were built as far as possible from the potters' field for the poor, Anglican graves are kept apart from the Roman Catholics and First Nations and Chinese citizens remain forever segregated from those of European heritage. This is our history, etched into the landscape.
The cemetery sits on the edge of the waterfront in a residential neighbourhood that covers what was once a busy aboriginal community. Within a few minutes' walk from Ross Bay, remnants of that earlier settlement remain in the form of stone cairns where the Coast Salish people buried their dead 500 or more years ago.
There is a troubling difference between the manner in which we preserve and protect the dead on either side of the cemetery's hedge.
The province's law protecting registered cemeteries implicitly acknowledges the connection between those who are buried and those still living. It is illegal in most cases to play a game or litter in a cemetery – we are guided to solemn conduct to ensure we properly honour the dead.
But the cairns are treated as archeology sites under the province's heritage law. That law says the graves must not be desecrated, yet the archeology branch is guided by policy that allows developers to build above and around them.
"When the benefits of a project are sufficient to outweigh the benefits of archeological preservation, the branch's primary concern is to work with the proponent in determining how the project may be implemented with minimal loss to archeological resource values," the policy states.
The rules are designed to balance the rights of First Nations to protect their heritage against the rights of landowners.
But Catherine Bell, a law professor from the University of Alberta who specializes in cultural heritage law, believes the laws and policies have not kept pace with recent case law that has advanced aboriginal rights and title.
"Once we move from cemetery law into the archeological realm, we separate the object from the living culture and society and this is the fundamental problem in relation to burial sites. They are treated unequally in law," she said.
The Supreme Court of Canada ruling last summer on the Tsilhqot'in rights and title case strengthens First Nation claims to heritage areas, she said, "and it strongly reinforces that it is best to get agreement with First Nations with respect to how to manage and control those areas."
But when remains are found on private property, these issues are especially complex. The province is in negotiations to purchase Grace Islet, in the Gulf Islands, where a landowner has obtained a permit to build a home on what archeologists say is an ancient Coast Salish graveyard.
Prof. Bell says the solution is to provide a clear system of disclosure and compensation, so that property owners can avoid or at least escape from conflict when aboriginal heritage sites are involved.
Aboriginal leader Robert Phillips of the First Nations Summit is part of a working group on the heritage question, which involves thousands of sites registered with the provincial archeology branch that are considered sacred to First Nations.
He said tiny Grace Islet, which barely measures a third of a hectare, must be the catalyst for a new approach.
"Sacred burial grounds have to be protected. This is where things have to start changing," he said.
In response to the landmark Tsilhqot'in ruling, Premier Christy Clark met with aboriginal leaders from across the province last September and promised a fresh start on reconciliation with First Nations. "That decision set out a fork in the road," she said. "We can take that fork in the road and begin a journey down a new road."
The province has been slow to move on Grace Islet, launching talks with the owner only after construction began. But Ms. Clark, who has an eye for the grand gesture, can be sure that First Nations leaders would welcome a move by British Columbia on this property as a symbolic first step on that journey.
Justine Hunter