Stalled project reveals archeological conflict between First Nations and B.C. government

An expansion of a popular Hornby Island pub that stalled this spring with the discovery of Indigenous human remains is threatening to become a flashpoint for relations between the province and First Nations in B.C. when it comes to heritage conservation.

What began with the issuing of a permit by the government's archeological branch in relation to a proposal for condominiums and a new pub building dissolved into a stalemate when workers stumbled across three sets of bones — including those of an infant.

The head of the K'ómoks First Nation says the situation has exposed more than just the resting place of her people's ancestors. She is accusing the province of failing to properly consult or live up to its international obligations when it comes to the approval of permits for excavation and construction on archeologically sensitive lands.

"How we feel a lot of the time is, we don't want to be the person saying no. But at the same time, I'm culturally expected to protect these things and look out for our ancestors, who looked out for us," says Hegus (Chief) Nicole Rempel. 

Work has stopped. Legal letters have been issued. And all parties are hoping a meeting between the province and the First Nation later this month might find a way forward.

Meanwhile, pub owner Jack Hornstein says he feels caught in the middle of a much bigger battle between a provincial government swamped with requests to develop prime property and a First Nation whose ambitions he says he supports — but whose demands threaten him with financial ruin.

"I'm all for what they want going forward … I've done everything I'm supposed to, I followed the rules I'm supposed to follow and they say they don't want to get me involved or hurt me," he said. 

"But, basically, I'm a pawn in the game here."

'This is our history'

The K'ómoks First Nation's territory ranges from the Comox Valley on the east mid-coast of Vancouver Island as far north as Salmon River, and includes several Gulf Islands, like Hornby and Denman.

The site in question is an acre-and-a-half of beachfront property near Hornby's ferry terminal.

It includes a shell midden, one of the many massive accumulations of discarded shells that are the hallmarks of vanished villages once populated by Indigenous people who have fished, traded and travelled all over the West Coast for thousands of years.

Rempel says the middens almost always point to burial grounds, which make it a certainty any development of the site will disturb the remains of her nation's ancestors.

"This is our history. This is a timeline of our existence here. And because these are all on private lands, it's really hard for us as First Nations people to access these things," she said. "And so we we raise all these concerns. And from my understanding, you know, permits are still issued."

'Cultural desecration'

According to the Ministry of Forests, Lands, Natural Resource Operations and Rural Development, which houses the archeological branch, staff investigated an alleged contravention of the Heritage Conservation Act at the site in 2019 when geotechnical testing was done within the bounds of a previously recorded archeological site.

Charges were not pursued and Hornstein applied for permits to allow for archeological assessment of the proposed site of his expansion. The remains were discovered during work in mid-March.

Hornstein says he's been "blindsided" by what has happened since.

He says he voluntarily paused work at the site out of respect for the K'ómoks First Nation. He sent a letter to the K'ómoks seeking a way forward, given open excavation pits, the threat of curious tourists stumbling through sensitive areas and a need to fix a water line to a pub that was already bleeding money given the COVID-19 pandemic.

In response, last week, he received a demand to cease and desist excavation and construction in a letter threatening litigation and accusing him of "cultural desecration."

Short windows for complex decisions

At the root of the conflict is the way the archeological branch issues permits for heritage inspection, investigation and alteration.

Applications are referred to First Nations, which are given 30 days to comment.

The branch says permits for archeological assessment and alteration to the Hornby Island site were issued last spring "when no concerns were raised" by the K'ómoks First Nation.

Rempel says she missed the deadline, noting it was the beginning of the COVID-19 pandemic and she had the health and welfare of the First Nation's 345 members to consider.

She says the province and the Islands Trust, which serves as a kind of municipal government, should never have allowed the project to proceed.

"That's sort of an issue that First Nations have right across the province," she said.

"They give you these short windows. And we're not experts by any means in a lot of these referrals that we get … And so it takes a lot of time away from what we should be doing as leaders to respond to these things."

'Spiritual value'

Jesse Morin, a Comox-based archeologist who works with the K'ómoks and other First Nations, says the permit process is a major issue, as is the discovery of remains through construction and project proposals up and down B.C.'s coast.

He points to Locarno Beach off Vancouver's English Bay and multi-million dollar home expansions that have been stalled because of archeological finds. He says B.C.'s red-hot real estate market has attracted buyers with no clue of what might lie beneath their property.

"Protection of the sites themselves and the historical value of the sites is important, but it's the spiritual value of that relationship to the ancestors that's first and foremost," Morin said.

To some extent, the conflict echoes debates over pipeline expansions writ small. Consultation doesn't necessarily mean the ability to reject a project. But Rempel says the province is not living up to its obligations.

The legal letter sent to Hornstein references the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which states that Indigenous people have the right to "maintain, protect and develop the past, present and future manifestations of their cultures, such as archeological and historical sites."

In 2019, B.C. passed legislation to implement UNDRIP by aligning its laws with the UN declaration.

In a Facebook post on his pub's website, Hornstein said the manner in which the conflict has played out leads him to believe the "issue is less about our property and more about using us as leverage against higher levels of government."

Hornstein said he recognizes that UNDRIP gives the K'ómoks a stronger hand to ask for change.

But he says nothing's going to happen quickly. And he's at a loss for what to do.

A meeting with government. Then what?

Hornstein says he had already agreed — at considerable cost — to a more stringent examination of soil at the site to meet the K'ómoks First Nation's demands. 

He also agreed to a designated reburial site, additional radiocarbon dating samples, and has had a member of the nation on site at all times.

The nation has drawn up its own 46-page Cultural Heritage Policy that it wants applied to projects within its territory — something Morin says can happen under a provision of the Heritage Conservation Act that allows the province to enter into formal agreements with First Nations with respect to conservation and protection of heritage sites.

"They've been cut of forestry, cut out of fisheries. Moving forward, [development] is one of the only viable paths for self-determination and making some money in this economy," he said.

"They don't want to be seen as anti-development. They just want to manage that development so it's in accordance with their culture and their spiritual values."

Rempel is scheduled to meet May 14 with Katrine Conroy, minister of Forests, Lands, Natural Resource Operations and Rural Development.

The ministry provided a statement to CBC News that says there is no current contravention and that Hornstein is operating under the authority of his permits and in accordance with the accompanying conditions.

That means he's theoretically free to put shovels back in the ground. But he says he has no desire to end up in court with the K'ómoks First Nation.

Both Rempel and Hornstein say they have no issue with each other. And the last thing either wants is to look like a stereotype: She says she's not anti-development and he says he respects her nation's desire for autonomy.

And so for now the work stays stopped. And summer is coming.