The future of a tiny islet a short kayak ride from Saltspring Island is up in the air after the Capital Regional District decided not to expropriate the aboriginal burial site where an Edmonton businessman is building a house.
Members of the district's board concluded in a vote Wednesday that its hands are tied. Similarly, the province says there isn't much it can do either because the landowner isn't violating any permits.
But Ben Isitt, a district director who had proposed expropriation, said he'd be willing to stand with First Nations. That action could include "civil disobedience if necessary," he said, saying he might join protests on the islet.
"Caution prevailed over leadership. They got scared in the face of legal advice," Mr. Isitt said in an interview after the decision Wednesday.
Mr. Isitt said the regional district's board chose not to delve into what it would take to protect the islet and instead, "decided to stand on the sidelines and allow the island to be desecrated."
Archeologists say Grace Islet, a registered aboriginal heritage site, is dotted by ancient burial cairns. It is owned by Barry Slawsky, who has sought and received all the required permits to build his house.
Mr. Slawsky was unavailable for comment.
Area aboriginal groups, archeologists and protesters want the construction stopped.
A visit by an archeologist with the province's archeological branch two weeks ago found the construction impinges on some of the burial sites, including having the house's foundation wall straddling two of the cairns, leaving them partly inside the structure.
Mr. Isitt said expropriation was one way of protecting the site.
But Andy Orr, a spokesman for the district, said the district had no authority to expropriate the islet because Mr. Slawsky's building permit has not been violated.
The islet was zoned as residential land by the district in 1974, even though it was registered in the 1960s as part of an ancient First Nations village. Mr. Slawsky bought it in 1990.
In 2007, archeologists found 15 burial cairns, but Mr. Slawsky applied for and received his building permit on May 3, 2011. As part of the process, B.C.'s archeological branch approved Mr. Slawsky's site alteration permit application, which met stipulations to protect the islet's burial cairns, such as enclosing them in plywood boxes.
Darcy Mathews, an independent archeologist and expert in aboriginal burial cairns, appeared at this week's meeting. He is incensed that a house is being built on what he says is surely an ancient cemetery.
"Enough burial cairns have been excavated around the Salish Sea for us to be confident these are burials. Many of the burial cairn features I saw on Grace Islet are consistent with other burial cairns I've seen around the Salish Sea," Mr. Mathews told The Globe.
But to determine the full number of human remains buried at the site would require more intensive investigation, using methods such as ground-penetrating radar and careful excavation between cairns to identify them. The province has not done that work, said Mr. Mathews.
"There's probably, over a significant period of time, a real variety of burial practices on the island. The burial cairns just happen to be the most visible, because they're made of stone."
Forest and Lands Minister Steve Thomson said the province is "not in a position to rescind the permits."
"The conditions of the permit require that the cairns are protected and in my understanding that this complies with the conditions of the permit," he said.
But he acknowledged the house straddles some of the cairns.
Mr. Thomson said the province hasn't ruled out purchasing Grace Islet, which was assessed at $590,000 earlier this year.
In l994, while building Craig Bay Estates in Nanoose, workers found 168 burials containing 400 individuals. The provincial Liberals purchased the property for $7-million, two court cases later.
In 2006, while a condo project atop Snuneymuxw's ancient village site at Departure Bay was being built, 85 sets of intact remains were discovered. The province purchased the property for $3-million and returned the land to the Snuneymuxw First Nation.
Robert Morales, lawyer and chief negotiator for the Hul'qumi'num Treaty Group, says that if the province won't step in, a court injunction could be the next option to stop the construction, with the First Nations asserting that they have title over Grace Islet.
"But it would be a very complicated litigation because we would potentially be launching a land claim saying that First Nations continue to have title on privately held land."
Special to The Globe and Mail