Canada is a prosperous country, and one critical reason for that is our mostly secure approach to property rights.
For example, when governments expropriate private property for some public purpose, a well-established tradition in law exists whereby owners are compensated. No one expects someone to give up their home for free to facilitate a highway expansion.
However, a glaring exception has arisen. In B.C., the archeological branch of the Ministry of Forests continually demands owners of property designated as archeologically significant pay for archeological work before redevelopment can proceed.
Such work is not cheap, but a new court decision gives hope that British Columbians might soon face a more balanced approach from the province, one that respects the fact much of people’s life savings are tied up in their property.
In 2006, Wendi Mackay and her late husband purchased Victoria property from her parents (who bought the land in 1985 and built a home on it). The Mackays planned to demolish the existing home and replace it with a new one.
This is where they ran into a problem. The archeological branch refuses to list site designations on land titles, and thus a new buyer would never know there was an issue. As there was no heritage designation when Mackay’s parents built the original home, Mackay and her husband only later discovered their property was part of a newer “undesignated” heritage site when their architect liaised with the archeological branch. (Such sites are protected by the 1996 Heritage Conservation Act.)
The result was a plethora of extra inspections, permits and archeological work at Mackay’s expense. The initial bill was $67,000 but the archeological branch wanted even more work, worth another $50,000. That is when Mackay stopped paying and sued the province. She has claimed roughly $600,000 in damages because of additional costs.
In her landmark judgment, B.C. Supreme Court Justice Laura Gerow found departmental officials had “no statutory authority to require the petitioner to pay for a heritage inspection or heritage investigation under any circumstances.”
The B.C. Heritage Act allows the minister of forests, lands and natural resource operations to order someone to incur archeological costs. The law does not allow staff to make such an order.
In 2010, an elderly couple from the Parksville area, Louise and Hereward Allix, wanted to build a one-storey house because they had difficulty with the stairs in their existing two-storey home. When they applied for a development permit, they were told to first pay for an archeological dig. The initial estimate was $4,000; the final price tag was $35,000, not inconsequential for an elderly couple on a fixed income and in ill health.
In Kamloops, Ed and Vicki Collett, owners of the Harper’s Trail Estate Winery/Thadd Springs Vineyard have already spent $250,000 to comply with the archeological branch’s directives, and estimate yet another $40,000 in costs.
This continues to be a problem in B.C. The archeological branch catalogues 38,927 property sites in the province as archeologically significant, with 11,300 new sites added since 2005. As Mackay and others have discovered, owners of such sites face a potentially ruinous bill down the road for any archeological dig.
The provincial government has options. It could modify its own legislation and give the archeological branch the explicit authority to demand private property owners pay for archeological digs. That would make what the archeological branch has been up to “legal,” but it would not be reasonable for property owners.
More sensibly, and first, the province should allow for redevelopment on private property to proceed by ensuring found archeological deposits, remains and artifacts are removed, as has been the normal practice in most cases.
Second, a government that desires archeological artifacts should pay for the cost of uncovering them. Akin to compensation for financial injuries that results from expropriation, costs that result from regulation are similarly injurious to property owners.
The priorities of the archeological branch should not become a burden for property owners.
Mark Milke is a senior fellow with the Fraser Institute.
