Update – Willows Beach Site Controversy

Landowner Wendi MacKay in front of her house at DcRt-10. Source: Oak Bay News.

There is a new local newspaper article out on the Willows beach issue, below, which contains some important information and I think warrants  new post.  The article (PDF) from the Oak Bay News, confirms what was proposed in my previous post.

Namely,  the archaeological work at the site did not cost anywhere near the  $600,000 which was widely reported.

While the article doesn’t say how much it did cost, one can infer either $61,000, or some tens of thousands more than that.    A commenter “trowel” on the previous post alleges that the archaeologist’s salaries have not been paid, so the amount could actually be less.

OK, so that’s the main issue – the headlines screaming that the archaeology cost $600,000 appear to be flat out wrong and misleading if this new article is accurate.  So where does that figure come from?  Well, that is reported to be the amount that landowner Wendi Mackay asked the province to reimburse her.  There is no detailed breakdown publicly available as to how she arrived at that figure, which is surprising since she was, after all, asking taxpayers to foot the bill for around five to ten times the actual cost of the archaeology.  Turning to the Oak Bay News article, we see that:

“. . . work was completed and the house built, but MacKay took the archeology branch to court to recoup costs, including increased construction expenses, in the amount of $600,000. She lost that bid in B.C. Supreme Court last month, but plans to appeal.”

Costs?  Increased construction expenses?  OK, we don’t know what those are in any detail, but this site suggests about $200.00 per square foot for ‘Quality Custom Home” construction in BC (not luxury).  MacKay’s house is reported to be about 3,000 square feet and so one might expect it cost about …. $600,000 (!) to build.

Therefore MacKay could be asking for approximately the entire cost of her house construction to be paid for by taxpayers.  This implies that the cost of the house, if there were no archaeology at all on the lot, would be zero!

This may be legitimate but I would certainly hope that we can see the math before we pay, should she take her case to further appeal (and win).  I mean, as I have repeatedly said, I am actually sympathetic to the idea that B.C. society should help pay for the costs of archaeology in these kinds of cases.  But we need to keep it focused on actual costs of archaeology, and have journalism which reflects that.

Another interesting point in the Oak Bay News article is that Wendi MacKay is a lawyer.  Naturally, lawyers are well versed in the art of reading contracts, whether land conveyancing ones, or archaeological impact assessment ones.  And, they may be very well informed about the consequences of going to binding arbitration, and losing.  Of course, some lawyers have specialties which are far from these matters.  And all citizens, even lawyers 🙂 , deserve fair treatment and justice.

Still, one wonders, could Wendi MacKay of Esplanade Avenue be the same Wendi MacKay, lawyer who is an authority on administrative justice in B.C., former Director of the “Administrative Justice Project”, and author of this White Paper, for the B.C. Attorney General?

Could the unfortunate owner with a land conveyancing and land title issue be the same Wendi MacKay who was Chair of the Editorial Board that produced this document entitled Land Title Practice Manual—Third Edition [Regular Updates]: The authoritative guide for land title staff and conveyancing professionals.?

Perhaps her interest in land conveyancing stems from, rather than precedes, her unfortunate experience at 2072 Esplanade!  I wouldn’t blame her if it did!  But she does seem to be well versed in issues around land title, due diligence, as well as the intricacies of administrative justice in B.C.

Anyway, this all by way of commenting on the superficial journalism so commonly on offer in Canada.  The fundamental issue here – should landowners have to pay for the protection of archaeological sites on their property or should this be a collective responsibility and cost – is one about which I might agree with MacKay.

But we are not well served by misleading articles which propagate unexamined figures about the actual costs involved, and are shockingly incurious about the breakdown of additional costs.  This landowner might well be the victim which the press portrays her as, fighting as an average citizen against the evil forces of government bureaucracy.  But it is not inconsistent with that to state that she also appears to be  a person of considerable legal expertise on the very problems about which we all seek justice. It is therefore harder to simply accept that she has been bulldozed by the system.

But Si•čǝ’nǝł, DcRt-10, The Willows Beach Site, Cemetery, Village, Real Estate, Prime Waterfront Building Lots? Bulldozed, repeatedly, for over a hundred years.

6 responses to “Update – Willows Beach Site Controversy

  1. From todays TC http://www.timescolonist.com/technology/woman+hook+archeological+takes+case+Court+Appeal/4506912/story.html

    The second I see someone say “…how significant is this stuff anyway?” lose any sympathy I may have had. I mean, you may be uneducated about archaeology, but that’s just ignorance on a different order of magnitude.


    • wow!?#$!???

      Drew, another crazy aspect is that the Times Colonist ALSO simultaneously has a celebratory story about the restored Klondike phonograph. This reveals whose history is deemed to be important versus a ‘nuisance to taxpayers’…. by the TC and undoubtedly many others as well…



    • Thanks Drew, I’ll be doing a post on her decision to appeal as reported in the Times Colonist, which I think might have wide implications for the practice of archaeology in B.C.

      As for “how significant” – agreed, but at the same time, all archaeologists especially, perhaps, consultants on the front lines of public interaction, have a responsibility to educate their client as to why it matters, beyond “you have to do it, the law says”. I mean, that is good for archaeology but also good for business, right?


      • Absolutely.

        The state of public education regarding archaeology, and the way it currently works in BC, is very poor at best and non-existant at worst. Help people understand the system and situations like this would decline. I agree that it should fall (partly/mainly?) to consulting archaeologists to do this.

        Of course I’m not saying that the system isn’t flawed. Large companies can roll archaeological work into the cost of doing business in a way that private landowners usually can’t. The system as it stands doesn’t scale very well.

        I know the idea of an “archaeology tax” or “archaeology insurance” on all development to subsidize this sort of work has been knocked about before. This landowner and the one from Englishman River both said they thought the government should pay for the work. Well, the money has to come from somewhere.


  2. Pingback: Sitchanalth – The Songhees History Cairn at Willows Beach, Oak Bay « burnt embers

  3. I note the comments here are several years old and more light has been since been shone on the case. I’ve only started looking into this as I find my self in the same situation as Wendi Mackay. We bought a property as an estate sale. There was no disclosure of an archaeological site and there’s nothing noted on the land title. When we submitted building plans, all of a sudden we’re being told we have to do all these archaeological works. The starting point is $21,000 and that’s if nothing is found. The sky is the limit if they do start finding things. As the judge in the Mackay case has pointed out the land owner doesn’t benefit from these discoveries. This is for the public interest. It’s been compared to expropriation. If your home sits in the way of a new highway you’re not expected to donate your house and land for the public good. It’s the same here. Why should the land owner potentially pay for hundreds of thousands of dollars of work which doesn’t benefit them in the least.

    As to Wendi Mackay’s suit. She had to live elsewhere for a year, there were legal costs to file suit, taxes to be paid while all this went on etc. The $600,000 claim wasn’t just for archaeological work.

    I further note the Archaeological Branch is still demanding these costs be paid by the land owner even after the province has ruled it’s illegal to do so. There will be more suits filed and many more large claims made on the public purse for damages and additional expenses, all because the Archaeological Branch will not accept it’s responsibilities of paying for these surveys and work. They continue to exacerbate the situation by refusing to list known sites on land titles.


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