Indigenous leaders in B.C. say opposition politicians derailed a plan that would have cleared the way for shared decision-making between the province and First Nations about the use of public land in their territories. Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, during a news conference in Vancouver, in November, 2023.ETHAN CAIRNS/The Canadian Press
The head of the Union of British Columbia Indian Chiefs says he understands why the provincial NDP government is backing away from some of its more ambitious efforts at reconciliation, including shelving a proposed change on how to preserve Indigenous heritage.
This week, the B.C. government paused updates to the Heritage Conservation Act, which had roiled municipal governments in the province. Mayors and councillors said the legislative changes, which included measures to preserve “intangible” heritage assets, would be difficult to manage.
They complained that although the province had spent months in consultations with Indigenous groups, municipalities were cut out of the planning until the very end. The changes were intended to improve the process for identifying and protecting historic sites in B.C., 90 per cent of which are Indigenous.
“It’s an incredibly hostile environment now. I don’t think it’s so much the NDP as what’s happening globally,” said Grand Chief Stewart Phillip, head of the Union of British Columbian Indian Chiefs.
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Also this week, B.C. Premier David Eby reiterated his plans to amend the legislation that entrenches the U.N. Declaration on the Rights of Indigenous Peoples into B.C. law. While the opposition Conservatives have demanded the provincial government repeal the legislation, Mr. Eby said he would amend it to curb the ability of the courts to force changes.
“We need to clarify our original intent with the Act,” he said. “This was work government-to-government, not Nations in court separately from the provincial government. This is work that we have to do together.”
It was the latest backtrack on Indigenous issues from the provincial government. Almost two years ago, the NDP cancelled planned amendments to the Land Act, which would have allowed the province to share its decision-making powers over public lands with Indigenous groups. The measures would have covered access and use of public land, which encompasses 94 per cent of the province, and had impacts on forestry, among other endeavours.
But the public outcry over the BC Supreme Court Cowichan decision that recognized Aboriginal title for the Cowichan on lands in Richmond this past summer, which has introduced legal uncertainty about the ownership of some private property in city, has forced the NDP to back down.
“We have moved so far to the right. I think the government is being cautious,” said Mr. Phillip, who is also a member of the First Nations Leadership Council.
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Critics within the business community and some municipalities argue the government isn’t being cautious enough and that what’s needed is an entirely new approach to these issues.
“It’s not that they’re rethinking their primary thrust. They’re rethinking how to do it,” said Chris Gardner, president of the Independent Contractors and Businesses Association.
He said making “intangible heritage” protected under the Heritage Conservation Act without any further definition would make bad legislation worse.
The overhaul of the Heritage Conservation Act was aimed at giving First Nations more say in decisions about what needs to be protected and how, and at expanding the definition of heritage by including sites that don’t have any artifacts but have been identified as sacred in songs, stories or legends of First Nations.
Oral histories have increasingly been taken seriously as evidence by courts and researchers in recent decades, but Mr. Gardner said the proposed new act had no definition of how much evidence would be needed to certify a site as sacred.
“What does it mean? What is the standard?” he asked. “Because of its subjective nature, it would create a significant challenge.”
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Mr. Eby defended his government’s approach to Indigenous consultation, but said no one thinks the current Heritage Conservation Act is working. He noted the act has led to years-long delays in rebuilding the village of Lytton, which was razed during a ferocious wildfire in 2021.
But he also defended the principle of the current act, despite news that, under provisions of the current, unchanged act, a Kamloops homeowner is facing more than $100,000 in legal and other expenses after a landscaper doing some work found two skulls – possibly dumped there at some time in the past as part of fill – on his property.
He said the case is an example of why the act needs to be overhauled to work for First Nations, property owners and the natural resource sector.
“If you’re digging in your garden and you have the misfortune of uncovering an ancient Indigenous archeological site, there are going to be consequences,” he said at an unrelated news conference.
“How do we help manage those consequences, to reduce the impact on that property owner, and that we also protect the innate heritage of this place that we live in?”
The changes had also provoked concern from the Union of B.C. Municipalities, where mayors and councillors – the people often caught in the middle when artifacts are discovered after their city has issued permits – had said the proposed changes were too vague about how the new process would actually work.
“There were so many little pieces that weren’t answered,” said Cori Ramsay, UBCM president and a Prince George councillor. “We all agree the legislation needs to be updated but the process has been a little bit clunky.”
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Ms. Ramsay said her group wants to see a good system for preserving heritage, but the new “intangible” definition would mean expanding protection to many more properties.
As well, the language was vague about who would ultimately make decisions if decision-making was shared with local First Nations, especially when multiple First Nations might have an interest.
Ms. Ramsay said UBCM members “don’t want to damage the partnership” with First Nations, but there has to be balance in the act.
But Brian Thom, a prominent B.C. expert in anthropology and Indigenous land rights, said it will be a shame if the province backs down and does not protect sites that don’t have visible artifacts.
Those important sites, called “transformer” sites in anthropological language, include places such as Siwash Rock, which sits just off Stanley Park in Vancouver; a particular spot on Mount Prevost near Duncan, where local First Nations legends say is where their ancestors fell from the sky; and Hatzic Rock near Mission, which has been designated a national historic site.
“We need to recognize this heritage is part of our heritage in B.C. We need to respect it,” said Mr. Thom, chair of the anthropology department at the University of Victoria. “And we need some sort of orderly process, but we need to know if something is a sacred site.”