The province has done the right thing in abandoning its appeal of a B.C. Supreme Court decision concerning archeological research on private property.
The court ruled in 2013 that the province鈥檚 Archaeology Branch acted improperly when it forced Wendi Mackay to pay for archeological research on her Oak Bay property.
Mackay and her late husband bought the property from her parents in 2006 and planned to build a new house there. Archeological digs had taken place on the property in 1971. About 850 artifacts were removed and a report was filed with the Archaeology Branch. Even so, the government told Mackay that another archeological investigation was needed. She was told the property was a heritage site, although it was not officially designated as such.
That started a process of inspections and research at Mackay鈥檚 expense. She estimates that permits, archeological work and construction delays cost her about $750,000. When her claim for compensation from the province was rejected at various levels, she took it to court. In May 2013, the Supreme Court ruled that that province had no authority to make her pay for an archeological survey of her own property. Justice Laura Gerow ruled that the province鈥檚 treatment of Mackay constituted a nuisance.
The province filed notice of intent to appeal, but a statement from the Ministry of Forests, Lands and Natural Resource Operations said a review had determined it would not be in the public interest to pursue. A settlement has now been negotiated, the details of which are not being made public.
The conclusion of this case rights a wrong, which was that homeowners could incur onerous costs when archeological evidence is found on private property.
鈥淚n essence, the court has said that private property owners should not be required to pay the costs of archeological research undertaken in the public interest, particularly when the government has not registered its interest in private land on title,鈥� Mackay said.
The aim of B.C.鈥檚 Heritage Conservation Act is 鈥渋s to encourage and facilitate the protection and conservation of heritage property.鈥� This type of legislation is common to many jurisdictions, and it has resulted in the discovery and preservation of thousands of archeological sites that otherwise would remain hidden.
While such legislation has enriched our understanding of the past, it could lead some homeowners to fear impoverishment in the future. The Mackay case sets a precedent that should mitigate such a fear.
It is important to preserve heritage, but when the benefit is to society at large, the public purse, not the property owner, should bear the cost.
