“With respect, I have some…

“With respect, I have some serious concerns regarding Section 66.1. Specifically:

1) Exempting properties from archaeological assessment by Orders in Council means that archaeological sites – including Indigenous ones – could be destroyed by fiat and in secret. This creates a potential marketplace for corruption. What is the process by which exemptions will be granted? Will the government grant themselves a pass for costly archaeological assessments that regular citizens and businesses will be required to complete? Will they grant exemptions to friends? Donors? Any system whereby some parties are expected to follow the rules and others can be excused from them violates the dispassionate fairness that citizens are entitled to from their government. Ontario is not a kingdom.

2) The “provincial priorities” listed encompass the triggers for almost the entirety of the archaeological work that is done in the province. “Such other priorities as may be prescribed” is open-ended and could mean anything. Every developer, proponent, and financier thinks their project is important, Can we expect a cloud of lobbyists to descend on Queen's Park, each begging for an exemption for their particular project? This is the court politics of Trumpism - not democracy.

3) The text notes that requirements under the Funeral, Burial, and Cremations Services Act, 2002 will continue to be in force – presumably to ensure that cemeteries are protected. However, many, if not most, Indigenous cemeteries and burials are sitting UNKNOWN out in the landscape. We don't know how many there are. We don't know where they are. We do know that there are a lot of them going back as much as 13,000 years. One of the primary reasons we do archaeological assessments is to ensure that the thousands of unmarked and undocumented Indigenous burials across the province are located BEFORE they are disturbed by the development process. There are numerous instances of these burials being impacted in cases where developers and proponents skirted the assessment process. The results were embarrassing to the Crown and expensive to clean up. The changes proposed have the potential to create a system in which Settler (White) cemeteries are fully protected and Indigenous ones are not.

4) The ERO mentions that regulations will be put into place to establish the criteria that must be met for a property to be eligible for exemption. It suggests that properties which are home to former Indian Residential School sites, burials and significant archaeological sites may not be considered for exemption. However, archaeological sites in Ontario are typically ONLY discovered in the archaeological assessment process. Most of the sites in the province remain unknown. It's simply not possible to avoid destroying archaeological sites unless you first submit a property to archaeological assessment. Furthermore, it is not possible to ascertain if a site is "significant" unless it has been tested against the province's criteria, according to the process laid down BY the province. The idea that this legislation will protect significant archaeological sites BY EXCUSING PROJECTS FROM LOOKING FOR THEM is nonsensical at best ...and Orwellian at worst.

5) Most of the archaeological sites in Ontario are Indigenous. They have been here at least 13,000 years. Settlers have been here 400. Canada is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 11 of UNDRIP gives Indigenous peoples a central role in the management of their archaeological heritage. The Ontario Heritage Act was already problematic in this regard. But, being nearly 50 years old, it has an excuse. Things were done differently back then. This legislation has no such excuse. Indigeneity - what makes a person Indigenous - is almost entirely based on heritage. This bill opens the door to the destruction of Indigenous archaeological sites - in an era when those rights are at the forefront of public consciousness. Furthermore, it is being implemented without the provincial Crown discharging its Duty to Consult with First Nations. As such, it most certainly violates the Section 35 Constitutional rights of Ontario's Indigenous peoples. The Notwithstanding Clause cannot be used to avoid this duty. As such, the legislation, even if it passes, will almost certainly be challenged in Court. It will be stuck down. And the process will be time-consuming, wasteful, pointless - and completely out of step with the government's pragmatic attitude towards the allocation of taxpayer dollars. It will also, once again, remind Indigenous people that, while they remain subject to the law, they cannot expect the legal system to protect their interests.

The archaeological assessment process has been in place in Ontario since 1983. It has been in effect for a number of housing boom and bust cycles. Its impact on homebuilding and house prices has always been negligible. I've never met a poor developer, nor a rich archaeologist. That should tell you everything you need to know about where this legislation comes from, who benefits from it, and how much Ontario REALLY needs it.