Uncharted territory

By Katherine Palmer Gordon, January 2015

Failure to protect First Nations graves on Grace Islet may lead to the first aboriginal title claim on private property in BC.

On November 10, Chief William Seymour of the Cowichan Tribes wrote a polite letter to  Premier Christy Clark. Attached to the letter was a formal notice of claim to aboriginal title over Grace Islet, a three-quarter-acre rocky knoll located in Saltspring Island’s Ganges Harbour. 

It’s not unusual these days for the provincial government to receive claims of aboriginal title over Crown lands in British Columbia. But this one is different from all the others: the claimed property, Grace Islet, is privately-owned. 

The claim states that prior to European contact, Cowichan people exclusively occupied Grace Islet as a burial ground. Its conversion to private property in the mid-twentieth century was a breach of Cowichan’s aboriginal title, and therefore invalid. Seymour requested that the government therefore take immediate action to repurchase Grace Islet from its current owner, Alberta businessman Barry N. Slawsky, and return it to the First Nation. Otherwise, wrote Seymour, Cowichan Tribes will proceed with legal action. 

The implications of the claim, if it proceeds, could be profound. How will a court balance constitutionally-protected aboriginal title against bedrock principles of private property ownership? 

“If it goes ahead, this will break completely new legal ground,” observes Professor John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria Law School. “An aboriginal title claim over private property is uncharted territory.” 

It’s a risky step for a First Nation to take, notwithstanding the increasingly robust case law affirming aboriginal title in the province. A court could decide that the conversion of the land to fee simple status extinguished Cowichan’s aboriginal title. On the other hand, as Borrows points out, the court will have a blank page to fill. Given the facts related to Grace Islet, the balance could just as easily swing in Cowichan’s favour. 

Based on his legal advice, Seymour firmly believes that Cowichan will win: “If we are forced to go to court, Cowichan has a very strong history here and a very strong case so I think we’ll succeed.” 

But Seymour also strives to quell fears about what a case like this could mean to private property owners in BC. “It’s important to understand that we’re not going after private lands in general here. We’re not interested in that.” The claim is all about Grace Islet: “It’s completely exceptional.” 

He also emphasizes that going to court is a strategy of last resort: “I really hope we don’t have to go to court,” he says. He says the First Nation has had little choice but to take this dramatic step: “We’ve been forced to this point.”

 

Grace Islet has been registered as a provincial heritage site since 1974. Archaeologists have identified at least 18 burial features clustered on the islet. First Nations who share the territory in which Grace Islet lies—Cowichan Tribes, Penelakut, Halalt, Tsartlip, Tseycum and others—have made it clear that the sanctity of such group burial sites—cemeteries in all but regulatory name—must be respected. 

But in 2014, with provincial government permits in hand allowing him to do so, owner Barry Slawsky began construction of a 2300-square-foot home on the tiny islet. Room to build is very limited, and the home incorporates two of the graves into its crawl space. When First Nations learned that construction was proceeding, despite their protests to the government that no construction of any kind should take place on Grace Islet, they were aghast. 

Building a house in a cemetery is a breach of customary laws and cultural practices governing the care of the dead in these places. Cowichan lawyer and negotiator Robert Morales says cemeteries like Grace Islet are considered “dangerous, powerful places that are to be strictly avoided by the living…it is unthinkable to knowingly build a house on top of a cemetery.”

In an August 2012 letter to Minister of Forests, Lands and Natural Resource Operations Steve Thomson, Penelakut Chief Earl Jack wrote: “The disturbance of the dead is dangerous to the living, who may suffer sickness, poor fortune or death. For this reason, the dead were placed in cemeteries, such as burial islets, distant from village life. Only those persons who own the traditional ritual knowledge to deal with the dead may visit the cemeteries and care for the spirits through ceremonial practices.” 

But requests by Cowichan, Penelakut and other First Nations made to both the owner and the provincial government to leave the dead in peace on the islet have fallen on deaf ears. In July 2014, Minister Steve Thomson issued a public statement that the provincial government recognized its obligation to protect First Nations’ “archaeological sites,” but that the rights of private property owners must be respected. That, as far as Thomson was concerned, was that. 

 

The root of the problem lies in the distinct forms of legislation applied to First Nations burials sites versus those of others.

Under B.C’s Cremation, Interment and Funeral Services Act, it’s an offence to litter, play games or even drive over a nearby flowerbed in a cemetery—all activities disrespectful to the dead and their living descendants. But collective aboriginal grave sites do not receive the same level of sanctity under the Heritage Conservation Act (the HCA). 

The HCA, says Robert Morales, is supposed to protect aboriginal graves. “It does state quite clearly that it is an offence to desecrate them,” explains Morales. There are two problems, however. “Unlike the cemeteries legislation, which is premised on respect for human remains, the purpose of the HCA is preservation of the scientific and historic value of archaeological sites. First Nations human remains are the remains of real people, but the HCA treats them like artefacts.” 

The second problem, says Morales, is the way the Act’s being implemented: “It’s more about facilitating development than it is about protecting heritage sites.” The HCA authorizes the Archaeological Branch to issue permits to do exactly what it supposedly seeks to prohibit—to alter (read desecrate and damage) heritage sites as part of a construction project or development. Hence a permit to build a house on top of graves on Grace Islet.

The provincial government has also never developed any policies or guidelines governing what amounts to desecration or damage in the course of construction, he continues. “There are no criteria, for example, governing when a site simply shouldn’t be developed at all, like Grace Islet.”

Gabriola-based archaeologist Eric Mclay, who has inspected Grace Islet, says: “There should at least be a minimum threshold that must be met before a permit can be issued. But BC won’t create any guidelines at all, and owners are taking advantage of that, as we can see. In my experience,” he adds darkly, “the Archaeological Branch will simply push and push the limits on what can be done to sites until there are no more limits. It’s almost a rubber stamp process now. Grace Islet is a good illustration of that. Where are the boundaries?” he asks in frustration. “On a known burial site, with mass graves, how is it possible that a permit could be issued?”

No municipality or government would dream of issuing a building permit over a cemetery, nor would they be permitted to. Yet that’s exactly what has happened at Grace Islet under the auspices of the HCA. It’s an approach that Mclay describes as crass and appalling: “The HCA is supposed to protect these sacred sites from development. But the provincial government has instead chosen to allow a known cemetery to be developed [at Grace Islet]. There’s no morality in that whatsoever.”

 

Everything may change, however, now that Cowichan Tribes have fired their aboriginal title shot across provincial government bows. A title case may be risky for Cowichan, but it’s a downright unattractive proposition to a government that stands to be held financially responsible if a legal precedent is set for aboriginal title on privately-held lands.

It’s therefore unsurprising that an urgent flurry of activity followed receipt of Cowichan’s November 10 letter. Minister Thomson promptly secured Treasury Board approval to fund the purchase of the islet, and tasked former provincial deputy minister Lorne Brownsey and experienced consultant Patrick Kelly with attempting to reach a negotiated settlement between all the parties. 

Cowichan, encouraged by the prompt response, has put the title suit on hold while the negotiators meet with all of the affected First Nations and owner Barry Slawsky. “We see these negotiations as a positive step in the right direction,” says Seymour. His vision of a successful outcome is straightforward, and much the same as outlined in the title claim: “We don’t want a house built over our grave sites. It’s really that simple.” 

He would much prefer to see that outcome happen as a result of reaching an agreement with the owner and the provincial government rather than being forced to resort to litigation just to get to the same place: “I hope we don't have to go to court,” he repeats. “No-one wants that. But,” emphasizes Seymour, “that requires everyone to work together.” 

At press-time, the negotiators had no comment to make and the provincial government could only say: “Discussions are going slower than we would like.” Seymour was unsure whether anyone had had any luck getting hold of Slawsky, who was out of the country. The prospects for success of a negotiated settlement were anything but clear, and the likelihood of a court case proceeding—whether by Cowichan alone, or joined by their fellow First Nations with shared interests in the islet—is entirely possible.

 

When the possibility of a title suit was made public in December, Slawsky’s lawyer John Alexander told the CBC in dire tones that with burial sites scattered all over the Gulf Islands and coastal BC, title claims posed a huge threat to property owners: “This is going to ignite a firestorm of controversy if now private land is no longer something you can buy with any certainty.” 

But Seymour doesn’t agree that the Grace Islet case will set a precedent of that nature. “I hope it doesn’t do that. It shouldn’t. First Nations have never been after private land.” Cowichan haven’t asked for private property to be expropriated as part of their treaty negotiations, and Seymour notes that the Tsilqhot’in specifically excluded private land from their recent successful title claim. 

Grace Islet, however, is different. It may in fact be unique. Burials are found from time to time on private property but in most cases, an arrangement can be made with the landowner to deal respectfully with the remains, either by moving them or by moving the proposed construction to a different part of the property. In their experience, say Seymour and Morales, in almost every case this is the mutually satisfactory outcome. 

But when it comes to Grace Islet, First Nations have consistently emphasized that the entire islet is a burial ground, filled with grave sites. Eric Mclay says that given the tiny area of the islet, its steep and rocky topography, and the sheer number of burial features, it’s impossible to build a house without affecting them: “It’s clear there is not enough physical space on the islet to put a house without impacting the burial cairns.” 

Saltspring resident Joe Akerman, who is of Cowichan descent, agrees: “There’s simply no room to build on a different part of the property.” Because of this unusual situation, Akerman also dismisses fears that all private property would be at risk if a lawsuit should succeed. “That’s just not true. We aren’t here to kick everyone off their properties. This is just a matter of basic respect and decency when it comes to Grace Islet.” 

Robert Morales agrees: “It’s a great exaggeration to say all private property would be affected, whether this is a negotiated settlement or a court decision. I just don’t buy the fear-mongering. This is an exceptional situation.”

Even if aboriginal title over Grace Islet is established and a court orders the return of the land to its prior occupants, it may choose to limit the impact of the decision to the almost unique set of facts that Grace Islet represents, setting concerns to rest that the decision will have general application to other private property in the province. 

Professor John Borrows points out that as the law stands, the government could argue that the alleged infringement of the aboriginal title—the granting of fee simple title by the Crown to an individual property owner—is justified. But the test for justification has been set high by the courts. “The Crown would have to demonstrate that the benefits of the grant of land to a private owner outweigh the detriment to the First Nation,” says Borrows. While it’s possible, it’s hard all the same to imagine that the building of a house would trump the protection of 18 graves in this situation.

Cowichan isn’t the only First Nation with an interest in Grace Islet, of course (despite stating in its draft claim that it exclusively occupied the islet). That doesn’t necessarily pose a barrier to a grant of title, says Borrows; the courts have consistently taken the view that First Nations can have shared title to land to the exclusion of all others. 

“If Cowichan are serious about going to court they may want to talk about how to approach shared exclusivity with their neighbours and amend the statement of claim,” suggests Borrows. William Seymour agrees: “For Cowichan to claim totally exclusive use wouldn’t be right. Our neighbours used Grace Islet too. We will definitely talk to them and deal with that aspect if we go to court.”

In its notice of claim, Cowichan asks for the return of the entire property. Borrows believes that if it does come to that, fair compensation by the Crown to the disenfranchised party must be embedded in the decision. “That could actually be a good thing for property owners. Right now, private property rights aren’t constitutionally recognized in the way aboriginal rights are. So if the Supreme Court ultimately decides that compensation should be a bedrock principle in a case like this, that would be a good outcome too.”

Borrows acknowledges that money may never be enough compensation for people whose emotional and cultural attachment to a piece of land goes to the core of their identity and being. “Sometimes it isn’t just about the law and about rationality. You have to consider the emotive aspect and the connection to the land as well. You can get all this right on paper but if we don’t address those issues everyone still loses in the end.” 

Eric Mclay agrees with that assessment, saying Grace Islet simply needs to be protected from development like any other cemetery: “We have to recognize that the graves take priority.” Whether that’s through a negotiated settlement, says Mclay, or by establishing in court that aboriginal title and rights take precedence over private property rights in a case like Grace Islet, “BC needs to purchase that land back.”

Ultimately neither litigation nor a last-minute, expensive and one-off desperate attempt at negotiation is an ideal way to address this issue. Things wouldn’t have got to this pass, say all the players, if the law already effectively protected First Nations cemeteries and burial sites. Future title litigation could be avoided if this aggravation were finally to be remedied.

“The law needs to be strengthened so that situations like this don’t arise in the future,” concludes William Seymour. “It’s just crazy that we have to fight so hard to protect our burial grounds this way. No-one should have to do that to take care of their people.”

Katherine Palmer Gordon worked for more than 15 years as a contracts lawyer and First Peoples’ land claims negotiator and facilitator, both in New Zealand and BC.