Sorry for the lack of recent updates everyone, and also for jumping in with a “feel-bad” story, but since the Willows Beach site (DcRt-10) takes up a decent chunk of the most expensive waterfront near me, I was interested to read the coverage of a recent court judgment with an archaeological focus. The Times-Colonist‘s coverage is notable for an egregious misrepresentation in their opening sentence:
“An Oak Bay woman who built a house on an unregistered aboriginal midden has had her bid to recoup $600,000 from the provincial Archeology Branch struck down.”
This is true only for meanings of “unregistered” which include “a site recorded since approximately 1965, and subsequently the object of dozens of archaeological studies, including at least two on that very lot”. Sheesh.
The Times-Colonist (pdf) and Vancouver Sun (pdf) both print the same article, the Globe and Mail (pdf) a different one which adds some useful detail. The Sun is notable for having comments from readers, which are mostly depressing, but perhaps understandably so given the flawed articles as discussed below. The Globe is notable for having tracked down Ila Willerton’s recent M.A. thesis on the site – a sign of journalistic initiative even if their story is also problematic.
The coverage, which is badly flawed, indicates that an elderly homeowner has lost her appeal over the process underlying an archaeological impact assessment on her property at 2072 Esplanade in Oak Bay, which is an affluent suburb of Victoria (map). The story goes that she bought the property from her parents, the longtime owners. She had the house removed and sought to build a new one. The story implies she paid up over $600,000.00 (!!) for archaeological work, and was seeking a judgment for reimbursement, which was denied, although the judge was sympathetic:
In a decision made public Monday, Justice Shelley Fitzpatrick agreed with the arbitrator but said she has “great sympathy” for Mackay. “She and her late husband bought this property without any knowledge of its history and the potential impact of the Heritage Conservation Act on the property and her rights to develop a home on the property,” Fitzpatrick said. Mackay simply wanted to build a home “and was met not only with having to satisfy the usual development requirements, but also extensive, lengthy and expensive requirements under this act too,” she said. (Globe and Mail)
As I understand it, from the Globe and Mail article linked above, the owner had gone to arbitration and lost, and in so doing had agreed to forego her right to appeal. The new decision reflects this legality, not the pros and cons of the actual dispute:
Ms. Mackay had argued in her original lawsuit that the archaeology branch incorrectly applied the Heritage Conservation Act, requiring far more extensive archaeological testing than necessary. She also argued the dispute constituted a nuisance – a legal claim that someone has interfered with the use and enjoyment of another’s property. (…) Judge Fitzpatrick noted the law limits when an arbitrator’s decisions can be overturned, restricting such appeals to cases in which there are significant errors in applying the law. This case, Judge Fitzpatrick said, did not meet that standard. (Globe and Mail)
The take home message for the casual reader is that citizens are getting screwed by archaeologists, that the government is pandering to First Nations, that property rights are under threat, and that the Provincial government, by not registering archaeological sites on title and by requiring citizens to pay the costs, is engaged in an underhanded displacement of costly responsibility. I think that message is wrong, and carries unfortunate echoes of the recent Englishman River fiasco.
I haven’t done the research to really nail down what happened here, so I’ll just list a few questions that arise and maybe if there are any readers of this blog left they can chip in with some clarification.
1. Was the homeowner asking for reimbursement for the archaeological impact assessment or was she asking for damages for “nuisance”, legal fees or other items?
2. The issue matters because the reimbursement amount sought being mentioned in all the media coverage is a sizeable chunk of change: $600,000.00.
3. If it isn’t, then that is some serious misleading reporting.
4. If this is the actual cost of systematic data recovery for a single city lot, I am flabbergasted. Holy &%$#, I’m generally familiar with the results and find it hard to comprehend where the $600,000.00 went. Think about it: that’s close to the $750,000 that the lot and house together sold for in 2005.
5. But with that in mind, presumably the homeowner signed a contract with the archaeologist which included a budget, thereby agreeing to the work scope and cost. Why is this not reported? This was the most under-reported aspect of the Englishman River case, as I recall.
6. How can Oak Bay mayor Chris Causton be taken seriously when he says things like (from the Vancouver Sun):
“The homeowner becomes wholly responsible for all the costs but has no control over the expenditures or management of the project,” he said. Oak Bay is facing similar issues with new separate sewers in the Uplands, meaning residents there would be required to pay to connect that sewer.”We have no idea what the budget ramifications are from these heritage regulations,” Causton said. “It means that we’re unable to budget. And if we’re unable to budget, Oak Bay’s inclination is not to do it.” [editor’s hint: to budget, you get cost estimates from professional archaeologists]
I mean, the Archaeology Branch has been liaising with municipalities specifically to educate councils like Oak Bay about this very issue – an issue about which, by reputation, Oak Bay has been one of the least co-operative and proactive in the province. The issue might not have arisen with a bit of guidance and leadership from the entity which issues building permits in Oak Bay. Pleading ignorance no longer flies, Your Worship.
7. Though I don’t necessarily disagree with him when he continues “And the province needs to step in and manage these projects. They need to take some responsibility for some of the cost control.” Yes, the underlying issue is not one of communication only, it is one of fairness that the Province has downloaded all costs to homeowners instead of seeing archaeology as a collective treasure for all British Columbians. Am I agreeing with the Mayor that we do, in this instance, need more and bigger government?!
8. Does anyone have the legal judgment or the arbitrator’s decision, or know where they can be found? Update: thanks to a little birdie for sending me Judge Fitzpatrick’s decision here (see comment below as well)
Anyway, I feel like I need more information to make sense of this story – and if I need that, then the public needs that so, so much more than I do. My hunch is it is partially due to poorly informed reporting. Now, that is not necessarily a knock on journalists – the Globe notes “Ms. Mackay, her lawyer and the province’s archaeology branch could not be reached for comment.” The former two I can understand, but surely the Archaeology Branch could have coughed up a statement on this story, especially considering one of the managers there wrote a thesis on DcRt-10 – in fact his excavations are reported by Willerton (2009:18) to have been on a parcel now known as . . . . 2072 Esplanade Ave.
That aside, should the branch issue a press release clarifying matters – or have they? The fact is, archaeology is losing the battle of public opinion in this province – as seen in the Vancouver Sun’s comments section. Willows Beach is one of the most threatened major, urban village sites in the province. While it would be nice to have better journalism, no one has a greater responsibility to address the public with accurate, accessible information about Cultural Resource Management than the Archaeology Branch itself.