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British Columbia MLA seeks to ban building on First Nation burial sites

Two members of the Sto:lo First Nation are seen in 2008 at the aboriginal grave site near Yale in British Columbia.

JOHN LEHMANN/GLOBE AND MAIL

Land developers would never get approval to build homes among the headstones of old cemeteries, and aboriginal heritage and burial sites should be offered the same status, says a New Democrat MLA who is making another attempt to provide that protection.

Maurine Karagianis introduced a private members' bill on Wednesday for a sixth time, and used recent controversy about a house being built on top of ancient burial cairns on an island as part of her appeal to MLAs for support.

"Most communities would be horrified by the concept of building houses on top of cemeteries," Ms. Karagianis told the Legislature. "First Nations sites have frequently been destroyed by highways and housing. It is wrong and unacceptable."

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Ms. Karagianis' bill would amend the Heritage Conservation Act to ensure that a First Nation can notify the lands ministry when it believes construction is destroying one of its heritage sites. If the ministry is convinced of its authenticity, it must issue a 120-day immediate protection order that will stop the work.

The bill aims to protect ancient First Nations cemeteries and sacred sites from sharing the fate of the burial grounds on Grace Islet. Heritage objects and ancient settlements would also be protected.

The bill also would offer provincial funds to help First Nations buy or protect sites and objects that are found and turn out to have historical value, and as incentive for landowners or developers to report the discoveries without fear of incurring costs.

The Heritage Act was last amended in 1996.

"Up to this point, the [act] has not even considered sites and areas that are sacred to First Nations communities," Ms. Karagianis said in an interview.

"The Liberal government has been in consultation with First Nations here in British Columbia for about 10 years, but no actions have come out of their consultations."

Since June, Grace Islet, which is off Salt Spring Island, has been a flash point for First Nations protests because of a large home being built on land that area aboriginals say has been a burial ground for hundreds of years. Independent archeologists confirmed their accounts.

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This summer, the Capital Regional District debated whether to expropriate the land to stop the construction, but decided against it after getting legal advice that the owner had the necessary permits.

The islet has been zoned as residential land by the district since 1974, even though it was registered in the 1960s as part of an ancient First Nations village. The land was bought in 1990 and the building permit was issued in 2011. The only stipulation was that the land owner protect the islet's burial cairns by enclosing them in plywood boxes. The house straddles the cairns.

"The reality is that the legal protections are too weak, and too ineffective, and the greatest lawyer in the world can't do anything if there's not legislation to act upon," Ms. Karagianis said. "With Grace Islet, the developer knew exactly how inept and inadequate and ineffective the law is, so he proceeded, knowing there would be no options for enforcement."

A spokesman for Land Minister Steve Thomson said the Minister was unavailable for an interview.

Greig Bethel said in an e-mailed statement the ministry is "still exploring options for resolution" on Grace Islet and a comment would be "inappropriate … as discussions are ongoing."

Judith Sayers, former chief of the Hupacasath First Nation, and chair of a working group that has been in consultations with the provincial Liberal government since Gordon Campbell was premier, understands Ms. Karagianis's concerns.

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But she said the bill does not go far enough.

"The bill only gives time to a First Nation to try and negotiate a solution with the province and does not provide long term protection."

A section of the current act never implemented by the province could provide a better solution, Ms. Sayers said. It enables formal agreements with the province that would allow First Nations to manage and look after their heritage sites and objects.

"We can't do that right now," said Ms. Sayers, an assistant professor of law and business at University of Victoria.

Stewart Philips, Grand Chief of the Union of British Columbia Indian Chiefs, said Ms. Sayers is right, but he is still hoping Ms. Karagianis's bill proceeds.

"I don't think her bill would be as extensive as anything we [the First Nations] would bring forward, but it's far better than the status quo."

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