The proposed changes in Bill…

The proposed changes in Bill 5 to the archaeological framework are concerning, particularly with respect to exemptions.

Before addressing this fatal flaw in the proposed changes to the Ontario Heritage Act, I first want to acknowledge one positive proposed change. The inclusion of Indigenous Nations in the groups able to receive archaeological collections is a long overdue change, however its inclusion does not justify the risks of exemptions.

As written, exemptions could be used in two ways. The first way would see exemptions used surgically and sparingly as a means of improving government processes. The current regulatory framework of archaeology in Ontario is fraught with problems. Report review processes are slow and often unnecessary, and the bureaucracy gets in its own and others' way as often as not. Targeted exemptions, say to Section 65 of the Ontario Heritage Act, would help move priority projects along while still enabling archaeology to happen in a manner consistent with professional and Indigenous objectives and expectations. If the province is patient and thoughtful enough to wield exemptions in this way, they could improve the process without much of the risk involved if exemptions were to be used in the second way.

The second way exemptions could be deployed, and in many people's minds, the more likely way, would be to exempt requirements for archaeological assessments altogether. This is a far riskier proposition. Despite acknowledging the significance of Indigenous Ancestors and other human remains through the exclusion of the Funeral, Burial and Cremation Services Act from exemptions, the discovery of these remains often takes place during an archaeological assessment. Exempting projects from the requirement to conduct archaeological assessments increases the likelihood that Ancestral remains and other archaeological resources will be disturbed during construction activities. Upon finding human remains, construction activities will be forced to cease to permit the necessary forensic and burial site investigations to take place. Acknowledging that the duration and extent of the associated work stoppage will be relative to the scale and complexity of the discovery, the potential for project abandonment also increases with these factors. Archaeological planning and field assessments help proponents and Indigenous Nations plan for avoiding these circumstances by identifying concerns early and actively managing risk. When Indigenous Ancestors have been disturbed, relationships between proponents, regulators, and affected Indigenous Nations are likely to be damaged in a manner that affects current or future projects. The social and cultural harm caused by the unintended disturbance of ancestral resting places should also not be lost as a negative consequence of these exemptions. Relying on proponents to identify and report on discoveries when they would benefit most from ignoring such finds also opens the door to criminal disregard. Historical examples of proponent neglect of Indigenous heritage have often led to significant confrontations that resonate beyond a single project (e.g., Ipperwash, Oka, Caledonia). It was from these situations that archaeology was recognized as a risk management strategy to try and avoid future confrontations. Exempting archaeological requirements reintroduces these risks to development. Although there are challenges within the current system in terms of its regulatory (rather than legislative) approach, planning for potential discoveries of highly-sensitive sites in collaboration with proponents, archaeologists and Indigenous Nations is the most efficient and cost-effective strategy for achieving a successful outcome.

While the government has indicated that the Duty to Consult with Indigenous Nations will occur if Bill 5 passes, there is no indication that the government places heritage within the rubric of rights and interests that require consultation. Indigenous heritage stewardship is a fundamental right as demonstrated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Indigenous Nations consistently raise heritage concerns during the consultation process and expect appropriate accommodation. Where potential Indigenous heritage sites could be impacted, which is most places in Ontario, the government has the Duty to Consult when making decisions that could affect that heritage. Despite this, there is no non-derogation clause proposed to be added to the Ontario Heritage Act affirming that responsibility and no provisions indicating the government is prepared to fund the capacity-building necessary for Indigenous Nations to consult effectively.

Bill 5 therefore neither represents the ideal way to achieve Indigenous heritage stewardship outcomes nor does it resolve other issues within Ontario’s current heritage management system. The exemption provisions represent a significant threat to heritage. Instead of unleashing the economy, Bill 5 threatens to unleash many of the same demons we've already grappled with and continue to confront.