The Heritage Planning…

The Heritage Planning program at the City of Kawartha Lakes is submitting the following comments regarding the proposed amendments to the Ontario Heritage Act through Bill 5. Comments from the City’s Municipal Heritage Committee are attached as a separate documents outlining the comments provided to staff by the Committee.

Upon review of the proposed amendments to the Ontario Heritage Act through Bill 5, the exemption of sites from the requirement to undertake archaeological assessments is extremely concerning. Archaeological assessments are used in Ontario in order to ensure that any artifacts of cultural heritage value, including Indigenous and non-Indigenous artifacts and human remains. Their use as part of the development approvals process is to ensure that any sites are identified in advance of construction beginning and to ensure that those artifacts are preserved and mitigation can be undertaken at the beginning of a process. They are also used to engage Indigenous communities on matters related to their cultural heritage and to ensuring meaningful consultation as part of development. The removal of this requirement at the direction of the provincial government will have significant negative impacts on the ability of municipalities and Indigenous communities to, alongside the development community, identify and protect archaeological sites that have importance to understanding the history of Ontario. This is particularly concerning with regard to Indigenous sites as the province strives towards reconciliation and ensuring that treaty obligations are fulfilled.

One of the rationale for undertaking archaeological assessments as part of the development approvals process is risk management. Looking for and identifying archaeological sites and artifacts with cultural heritage value in advance of construction commencing mitigates financial risk for proponents by addressing archaeology as part of the planning stage of a project and ensuring artifacts are removed or the impact of the proposed development mitigated. This is especially the case with regard to human remains, both Indigenous and non-Indigenous. The exemption of certain sites from advanced assessment for archaeological concern will expose development proponents to financial and legal risk from work stoppages to litigation. As opposed to streamlining development, this has the potential to delay significantly or even halt certain proposals if the financial implications are too high.

In Kawartha Lakes, the majority of known archaeological sites are Indigenous in origin and, given the historic use and development of the region, the majority of sites that may be found in future are most likely to be Indigenous as well. The archaeological assessment process is a vital aspect of ensuring that the cultural heritage of local Indigenous communities is respected and preserved and in honouring and upholding treaty obligations. Any exemption of a proposed development site in this area will likely have an impact on Indigenous cultural heritage and rights.

The ability of the province to exempt a proponent from archaeological assessments has implications that extend beyond the preservation of cultural heritage within Ontario. In Ontario municipalities, archaeological assessments have traditionally been used as the trigger for the duty to consult and Indigenous engagement in relation to development proposals. The removal of this mechanism does not remove the duty to consult, even for proposals that have been exempted under the Act and the liability on behalf of the project proponent and the municipality in which the project is proposed remains. There is a concern that the duty to consult will now need to be triggered through litigation, as opposed to through municipal process. This has the potential to be costly and time-consuming for the proponent, as well as creating unnecessary work for Indigenous communities who will need to be proactive in litigation to ensure that they are meaningfully consulted. It also does not respect treaty rights throughout the province and is a step backwards in reconciliation efforts which should make use of existing mechanisms, such as archaeological assessments, to appropriate engage and consult Indigenous communities in the development approvals process and ensure that both legal and ethical obligations are met.

The proposals to prescribe in regulation sites that cannot be exempted from archaeological assessment will require significant and in-depth consultation with both municipalities and Indigenous communities. These regulations must protect Indigenous sites as well as non-Indigenous sites that are important not just provincially, but also to local communities. Fulsome consultation on this regulation will take time and will require real and meaningful engagement with Indigenous communities to ensure that both Indigenous and non-Indigenous cultural heritage is protected and considered as part of the development process.

The amendments proposed related to the deposit and care of archaeological artifacts and collections appear to be positive but require additional clarification and information to understand their full impact. The inclusion of Indigenous communities as bodies for the deposit of archaeological collections and artifacts is positive and, hopefully, the intention is to streamline the processes that will allow for the return of Indigenous artifacts to their appropriate communities. In the past, there has been limited direction from the province with regard to the transfer of artifacts from licensed archaeologists to institutional or Indigenous collections and the hope is that these amendments will provide a step in the right direction for the long-term management of archaeological resources as part of collections care and management.

The ability to define “public institution” through regulation will also have implications on archaeological collections management and the additional consultation that MCM is intending on undertaking, as indicated in the ERO posting, is welcome. The placement of archaeological collections and artifacts in appropriate facilities, whether Indigenous or non-Indigenous, is an important part of the long-term preservation of the province’s cultural heritage. At present, there are challenges regarding what types of institutions have the appropriate expertise and facilities to manage these sorts of collections and have the accountability to hold them in trust for the people of Ontario as is required under the Act. While additional comments will be provided through future consultation on any regulatory changes related to this matter, there should be a move towards the deposit and collection of artifacts only with bodies that are both professionalized and publicly-accountable, including provincial and municipal governments and facilities, Indigenous communities, research institutions such as universities, and other institutions with professional curatorial staff who can care and manage these artifacts appropriately.

In general, the proposals under Bill 5, both through amendments to the Ontario Heritage Act and through other legislation amended and introduced through this act, are setting economic interests over ethical and legal treaty requirements and obligations, as opposed to advancing them together in common interest. They do not support the obligation of both the provincial government, through the Crown, and of municipalities, to ensure the duty to consult is fulfilled and substantially expose proponents to litigation and risk. Unilateral decision-making by the provincial government to push forward development without appropriate consultation and engagement undermines the spirit of cooperation that is inherent in the treaties and nation-to-nation cooperation.