I apologize to readers from afar who may not be interested in the apparently parochial matter of a local woman’s encounter with archaeology on the Oak Bay waterfront, and the incomplete journalism which accompanied it.
But with the news Saturday (PDF*) that the Willows Beach landowner, Wendi MacKay, intends to appeal the earlier decision of Justice Fitzpatrick to the B.C. Court of Appeal, it becomes possible this case (previously 1, 2) will have repercussions for the practice of archaeology across the entire province. I hadn’t really thought about the implications of an appeal since, well, Fitzpatrick (section 33-38)] essentially says, “I would find the case in your favour if I could, but you gave up your rights to appeal, so I can’t.”
I might be calling wolf in my fears aired below.
But, bear with me.
Now, unlike Ms. MacKay, I am no lawyer with a specialty in B.C. governmental administrative process, nor is my name on a guidebook for land conveyancing. I don’t claim to understand all the details of contracts, due diligence, real estate transactions, binding arbitration**, and so forth.
So I will make only a couple of general comments, below.
1. As I understand it, appeals are supposed to be based on procedural matters of law or its interpretation, not the facts of the case, which Fitzpatrick accepts were mutually agreed by the parties at arbitration. Therefore the appeal can’t be about whether MacKay as an individual paid too much for archaeology, or planned too little, or did enough “due diligence”. It can only be about matters of law arising from her arbitration case. So, let’s revisit the arguments which MacKay brought forward at her first appeal (see this earlier comment):
[Fitzpatrick Section 8] The essence of her claim is twofold :
(a) that the Branch did not have the statutory authority to require her to obtain and pay for s. 14 permits and the associated inspection and investigation work as a condition of issuing the s. 12 permit; and
(b) the Branch’s requirements constituted a nuisance, since they interfered with her use and enjoyment of the property.
Either of these contentions, if supported, would surely require a radical revision of the B.C. Heritage Conservation Act. The first, (a) would presumably gut the Act by crippling or even eliminating the permit system. (The Archaeology Branch issues permits to conduct archaeological work in the Province; simplistically put: such a permit must be obtained before altering any archaeological site, whether previously recorded or not).
Also, see the key words “and pay for s 14 permits“, perhaps *cough* eliminating the consulting archaeology industry in B.C.
The second, (b) essentially would declare that implementation of the Act through the requirement to hire an archaeologist constitutes “a nuisance”, presumably opening the way for compensation of the type which MacKay asked for. Remember, Judges don’t write or refine or tweak legislation – they uphold it, or strike it down. The Court of Appeal could, I think, do either.
Earlier, I called Fitzpatrick’s decision a “roadmap” for the destruction of the Heritage Conservation Act and the conduct of archaeology in its current form in B.C. It appears MacKay is intending to follow that roadmap.
2. It is therefore useful to recall that MacKay is not merely a common citizen seeking justice with the help of a lawyer; she is herself a lawyer with substantial expertise in exactly those issues likely to be in play in her appeal. While any court case should be won or lost on its merits alone, it is also true that having a good lawyer doesn’t hurt. And if MacKay chooses to sit at her kitchen table, look out over Oak Bay in the evenings, and spend hundreds of hours of her free time doing legal research and preparing arguments to feed to her counsel, well …. you can see where this heads. If she chooses, she will be a formidable adversary for the Archaeology Branch, and therefore by extension for the Heritage Conservation Act.
3. So of course we wish to see a motivated Archaeology Branch both willing and able to argue the other side. Willing – yes, I am sure. But “able” is more of a political decision, and the new Premier, Christy Clark, is widely thought to be in need of appeasing the right wing of her Liberal Party. How much of a fight will the branch be allowed to put up? If the “nuisance issue” was thought to have implications for a broad range of necessary legislation, then a tough fight indeed, perhaps. But, the branch has recently moved ministries, so they may not have the complete set of relationships needed for close support. If, as rumoured, there is an early Provincial Election, then the last thing the governing party would want is to have to defend legislation that can be painted as a hindrance to development, a burden on land title, and a cost to home owners. Pressure might mount, then, to cut a deal with MacKay to protect existing legislation and buffer the political winds.
4. If that analysis of the road ahead is correct, it is kind of futile to go on to any more points, right? We’d be getting into “other than that, Mrs Lincoln, how did you like the play?” territory. Oh well, futility never stopped me before – indeed, some say it is my calling card.
5. I am tired of only hearing one side of this story, the landowners. To its credit, this new article has some very powerful points of view expressed by First Nations’ people. While welcome, it is surprising that both quoted are from Tseycum, its not clear why a Songhees voice is not heard. The article also has a generic, bloodless, passionless statement from a Ministry of Forests, Lands and Natural Resources spokesman, which is an improvement of sorts over the thundering silence from the government side so far.
But, where are the archaeologists? What is the B.C. Association of Professional Archaeologists doing about this kind of thing? You heard it here first: the Willows Beach case may threaten their very profession. Admittedly, the BCAPA is a voluntary organization with no legislated standing (unlike, say, being a nurse or a doctor, you don’t need to belong to the professional organization of archaeologists to practice archaeology). But, even if we consider it to be a self-appointed interest group then surely it needs to do some lobbying? Couldn’t they at least put a press release on their slick new website to the effect of “Willows Beach: More than Meets the Eye”? Archaeology is getting killed in the press these days. Equally, Simon Fraser University has a program in Cultural Resource Management, and at least one faculty member who specializes in the topic of Public Archaeology and CRM. What about the ASBC? Everyone needs to chip in, especially those in leadership positions.
6. Getting off my high horse for a minute here, a few details of the new story, if accurate, are also of interest.
First, this bit:
“Mackay was told initially that she would have to pay $5,000 for an archeologist to inspect the lot. The work exceeded the estimate and took longer than expected.
Then she was told a second permit costing $42,000 was needed.
Mackay lost trust in the first consultant and hired another, which quoted $51,000.
After three months of digging, Mackay asked the firm for an accounting and was told the price was $62,000 so far, and the work was only half done.
She was told a trench had to be dug under the foundation which had already been poured. The $600 estimate turned into an $8,000 bill. “At that point I started to get a bit frantic,” Mackay said. She had paid about $70,000 in archeology costs but the required report to the government was not done.”***
MacKay, as a lawyer, should have no problem reading and understanding a contract, including the fine print. Obviously I don’t know the details, but I presume that any escalation of costs would have been legal under the contract, or else MacKay would simply have pursued the archaeologists in small claims court, and won handily. Nonetheless, it also seems that, in common with the Englishman River case, there is the appearance of archaeologists not quite getting the point across to landowners of the danger of escalating costs, and the transparent provision for the same, in contracts. Possibly this is being inadequately reported, but there must be more to the story of ratcheting costs than meets the eye.****
Also, consider this from the quote above: “She was told a trench had to be dug under the foundation which had already been poured.” This barely makes sense. If the archaeologist did not approve the foundation, and if the report was not yet finished, then wouldn’t pouring that foundation constitute a violation of the Heritage Conservation Act? I mean, you don’t just have to hire an archaeologist, you’re supposed to listen to what they say (I believe this was at the root of the Cadboro Bay incident from a couple of years back). On the other hand, if the archaeologist approved the foundation to the point of pouring cement, then on what basis do they later say a trench needs to go underneath it? Archaeological booboo? On the other, other hand, if she poured her foundations then had to move them, I can understand some of the excess costs of construction. I am confused, and this is why I sincerely want to see an accounting of the $600,000 claim the landowner is making against the taxpayers of the Province.
7. The Times-Colonist story reads, “The archeological dig turned up stone chips that could have come from the making of tools. There were also very small fragments of bones but it was not clear if they were human or animal, said Mackay.”
I don’t think this was all that was found. Maybe it was, in which case 70,000 might have been a bit steep. I do think that we need to address the subtext: if MacKay has indeed paid $70,000 and feels that nothing was found or can’t articulate the findings more fluently, well, that alone is indeed a problem for the discipline. How can we get the story out that archaeological research, including CRM archaeology, has meaningful results? We, all archaeologists – academic, private, government – really, really need to find a way to express the meaning of discoveries, and not just fall back on lame “you have to do it, it’s the law” excuses.
I am sure many landowners who grudgingly have to accommodate archaeology would do so more willingly if they felt something worthwhile was being learned, and/or something worthwhile was being saved. And the court of public opinion (in this case, court is in session at The Blethering Place Tea House, I like to think) would have a lot more to consider over crumpets.
Without the stories, you have a black box which takes their money in one side and spits jargon out the other. We can do better.*****
8. Maybe MacKay’s appeal will be a tempest in a teapot, but I don’t think so. I think this has the potential to be a landmark case in B.C. Archaeology, and, especially given Fitzgerald’s roadmap, I think it has a good chance of turning out badly for the Province. Am I reading more into this appeal than I should?
If it turned out as a result of an appeal judgment that the B.C. government needed to create a fund to help landowners with costs of archaeological protection, there might indeed be some good things along the way. As Fitzgerald points out, the practice of archaeology and the statutory requirements to conserve heritage must be reconciled with:
protecting the interest of a private landowner in having the right to control and enjoy her own property as she wishes, without interference from the state and without the state requiring that the landowner fund activities on the land in what can only be described as a public interest endeavour.
That could be a recipe for destruction, or for creation of something better than the current system. I’d like to hear opinions. Eggs, or omelettes? Archaeological advocates, start your whisks.
Yes, I include footnotes. Deal with it.
* the point of the PDF is to make a stable record. The Times-Colonist uses very unstable URLs and a lot of links I have made to their stories are dead within a few months – and available nowhere, not even on their website through all the crafty searching I can muster. Since the newspaper apparently does not think their own content has enduring value, I will assert through a screen shot that it does, indeed. Ironic, really, that the British Colonist from 1858 is more accessible and stable online than is the Times-Colonist from 2009.
** Though, if you can appeal an arbitration result, how binding is it, really? I mean, really. That’s like the opposite of binding.
*** I note the Times-Colonist is now careful to say, “Excavation of this property in 2007 wound up requiring an archeological impact assessment permit, which was part of a total $600,000 bill,” thereby abandoning their earlier insinuations that the archaeological bill in itself was $600,000. Who knows, maybe they read this blog 🙂
**** I think the consulting archaeologist is probably hampered by a confidentiality clause in their contract with the client, which seems unfair if the client is able to discuss the details, but there is no ability to rebut. Is this correct?
***** It is for this pragmatic reason alone that we must work powerfully together with First Nations cultural specialists. Some archaeologists still don’t think so. Some First Nations may not as well. But this is the single most important thing to do: tell some of the stories of places like Willows Beach more effectively than “stone chips” and “fragments of bone”.