Comments on Ontario's…

Comments on Ontario's Proposed Bill 5

Submitted by:

Dr. Neal Ferris
Western University
Dept of Anthropology/Museum of Ontario Archaeology
nferris@uwo.ca; 5199336898

Thank you for this opportunity to speak to elements of proposed Bill 5. While such a far-reaching Bill touches on many topics, my comments here will be restricted to proposed changes to Section 6 of the Ontario Heritage Act and the associated exempting of Section 6 and enabling archaeological heritage conservation provisions in various land use development legislation.

I provide an introduction below to contextualize my comments, some specific considerations that Bill 5 fails to consider, and some alternatives to the "all or nothing" approach advanced in proposed changes to the conservation of Ontario's archaeological heritage in development contexts outlined in this draft legislation.

1. Introduction

By way of introduction, let me point out that I worked for the Province of Ontario from the mid-1980s to mid-2000s as an archaeologist in the various Ministries responsible for the OHA. Subsequently, I have spent the last 18 years working at Western University, holding the Lawson Chair of Archaeology, where a primary focus of the research I and students I have worked with has been on the contemporary practices and regulatory environment of archaeological conservation in Ontario and Canada.

While working for the Province, I saw Ontario archaeological conservation regulation transform from largely minor in-house efforts of Ministry employees to an ersatz approval authority (by proxy through other development processes or by intent of accepting license reports under the Ontario Heritage Act) of a professional industry licensed and enabled under the Act. More importantly, I saw the Crown intent of this practice transform from the collection of archaeological objects for learning and to appreciate the past, to the balanced process of meeting the Crown's fiduciary responsibility of a clear Indigenous First Nation interest within land use development, facilitated by licensed archaeologists working in the service of the intersection of Ontario and First Nation Sovereign heritage affected by Provincially regulated land and resource use development activities.

I should also note that though this transformation was long, it was massively accelerated under the Michael Harris government in the 1990s, who sought to ensure efficient conservation within development approval processes to avoid a repeat of tragic events such as the occupation and loss of life that occurred at Ipperwash Provincial Park (triggered in part over concerns for Ancestors' remains not being adequately cared for before development of a parking lot). Later on, that same government undertook an Archaeological Customer Service Project to improve the process further, to ensure that the balance of archaeological conservation within development contexts still achieved an efficient and timely practice that did not cause project delays or large-scale cost overruns.

I ended my time working for the Province after serving as a technical advisor at the Caledonia negotiations table between Ontario, Canada and representatives of the Haudenosaunee Confederacy. Those efforts sought to lift the occupation of a housing development and the blockade of the main road into Caledonia. An action that, in part, was triggered by concerns for the archaeological heritage and the Ancestors' remains on that property.

In other words, I saw unfold the transformation of archaeological heritage compliance in Ontario from a relatively trivial pursuit and obscure Provincial licensing responsibility for the study and appreciation of the material past, to its vital integration in land use planning in order to address a prevalent First Nations interest tied to territory, ensuring predictability and certainty in this process, building trust with First Nations, and generally demonstrating that this sovereign heritage is being accounted for in Crown decision making and priorities.

This experience, I think, affords me a sense of a larger context and expertise to offer the following comments.

2. Overview

As I read through the proposed changes to the OHA and the exemption of managing the Province's archaeological heritage within an unspecified range of development activities, I was struck by the degree they appear to create a variable, “all or nothing” approach to the Crown's meeting of this provincial interest and its fiduciary responsibility to a First Nations interest in this material heritage.

On the one hand, these provisions give the Province enhanced Inspection authority to assess and identify the presence of archaeological sites or material belongings on any land, the power to direct licensed assessments of any such inspector-based findings, and the power to seize any property deemed archaeological, including objects and collections. On the other hand, these provisions also propose to exempt Section 6 of the OHA and affiliated enabling legislation governing development activities where the Crown has determined through an unspecified means that the development is a provincial priority.

The net effect of these provisions, then, is the Province's ability to inspect private/public property on the basis of the possibility of archaeological sites being present, while willingly choosing not to know if any specific private/public developments are, in fact, impacting that archaeological heritage.

These proposed amendments will create a two-tiered approach to articulating the Crown's interest in the archaeological heritage of this Province and in meeting its Fiduciary responsibility, one that couples unprecedented Provincial overreach onto private/public property and collection repositories – ostensibly in the name of documenting and protecting the Province's archaeological heritage – with Crown consented wholesale destruction of that heritage in a to be defined range of development contexts.

3. Archaeological Conservation as Crown Fiduciary Responsibility, Not Heritage Conservation

It is vital to recognize how much archaeological conservation has become something other than what it is assumed to be in Bill 5, i.e., a nice thing to do, but only when it does not cost money or time, or otherwise adversely affect development outcomes and Provincial economic growth.

It has been the case from the 1970s onwards that Ontario has seen many legal and extra-legal actions emerge over the ill treatment of Indigenous Ancestors and First Nations sovereign heritage, as a result of the real or presumed failure of the Province to account for that Indigenous interest in its decision-making priorities, and failure to consult with First Nations on those decisions. In other words, examples such as Kettle Point and Caledonia were not extraordinary. They were a part of a continual concern and risk to the certainty of economic activity and development investment in the Province. One that Provincial staff in working under the OHA regularly sought to mediate and defuse as issues arose, and one that the Province, on numerous occasions, had to undertake extraordinary actions to resolve, ranging from purchasing development properties, issuing stop work orders, negotiating treaty and land agreements, etc. Over the last 40 years the Province has repeatedly sought means to work with First Nations and adopt practices that could increase trust in process, and minimize uncertainty and risk for economic development as a result of its failure to consult and have regard for First Nations' interest in these lands generally, and the Ancestral heritage encompassed on those lands, specifically. While nowhere near achieving complete trust and certainty, the Province has come a long way from the attitudes and practices of the 1970s and 1980s. I fear that Bill 5 will quickly undermine those decades of effort.

The clear definition of First Nations Rights and Interests under the Canadian Charter and Constitution arises out of Section 35 of the Constitution. Those rights and interests, and the resulting Crown obligations to attend to them in its decision-making, have been significantly clarified by the Supreme Court of Canada over the last 40 years. Importantly, as part of that clarification, the SCC has clearly indicated that the Crown's and Crown agencies' responsibilities around their duty to consult and account for these rights and interests in executing Crown actions extend to the care and accounting for First Nation Ancestors and their Sovereign heritage. Explicitly in cases such as Kitkatla Band v. British Columbia (2002 SCC 31), and Chippewas of the Thames First Nation versus Enbridge Pipelines Inc. (2017 SCC 41), the SCC specifically framed Crown heritage management regimes within development contexts AS fulfilling the Crown's obvious fiduciary responsibilities to this acknowledged First Nation constitutional interest. Indeed, this was a strong basis for denying the First Nation's position in those particular cases – i.e., Crown uniform imposition of conservation regimes within development contexts ensures those provinces are not failing to address their fiduciary responsibility in these areas.

This perspective is also reflected in the findings and specific recommendations of the 2007 Ipperwash Inquiry Report (Recommendation 22), and in the United Nations Declaration on the Rights of Indigenous Peoples, which includes Articles (11, 12) that acknowledges the right of Indigenous peoples to maintain, control, protect, and develop their cultural heritage, including archaeological sites. UNDRIP, in particular, has been recognized in Canada as applying to the Crown's duty to consult, a position that must be reflected in Crown decision-making approval contexts, as recently upheld in the SCC decision Kebaowek First Nation v. Canadian Nuclear Laboratories (2025 SCC 319).

Critically, then, the Province has a fiduciary obligation under Section 35 of the Canadian Constitution to account for and consult on decisions that will impact the Indigenous interest in their sovereign heritage. And this responsibility is neither something that can be variably or sometimes addressed. Neither can the Province’s responsibility be waived here, since Section 35 is exempt from the Notwithstanding Clause in the Constitution.

The Province, development sector, municipalities, and the heritage compliance sector have all worked closely with First Nations over the last 30 years to improve trust in process and secure certainly in risk management when it comes to avoiding the destruction of significant Indigenous heritage and Ancestors in development contexts, so that the days of extra legal occupations, blockades, and confrontations over the way the Province balances its economic priorities with its Crown fiduciary responsibilities in Ontario - if not removed – is much lessened than in decades previous. While the process of identifying archaeological sites on development lands and mitigating their impacts from planned construction/extraction can be improved, it cannot be selectively ignored.

In other words, while the logic underlying the proposed revisions in Bill 5 reflects a desire to dispense with what is perceived as costly delays in development for the sake of documenting archaeological materials, in 2025 across Canada and in law, this process is not about preserving archaeology. It is about how the Crown addresses its Constitutional responsibilities to First Nations' sovereign interests. Any Crown intent to revise the process or "exempt" contexts for this obligation would violate the Constitution. Indeed, failure to consult with First Nations on this legislation is, itself, thus problematic and will undoubtedly be challenged.

Ironically, in the Province's attempt to "unburden" development from red tape, it is seeking to adopt a process that will increasingly be challenged by a wide sector of interests and First Nations, and will, most certainly, “burden” economic growth by creating heightened risk for development proponents (public or private), as legal and extra legal challenges again increase and cause the very delays and disruptions this Bill is seeking to minimize.

4. Alternatives to the "All or Nothing" Approach of Bill 5

The provisions in Bill 5, on the face of them, appear to reflect a Province that wishes to waive away heritage conservation anytime that work "might" affect timely completion of Provincial development priorities, or impose a cost on a private sector developer seeking to avoid such costs.

Beyond the obvious contradiction and variable outcome this will engender, the unintended consequences and legislative contortions that will emerge from variable all or nothing application (can the Province seize objects collected by individuals at locales where provincially exempted development led to destruction of archaeological sites; can one housing development be subject to conservation while a housing development next door be exempt?) are remarkable.

I can only assume the Province, at present, either feels that its Fiduciary Responsibilities and duty to consult First Nations are not applicable when it comes to heritage conservation, or is not a Constitutional violation when not doing so. I strongly encourage the Province to reflect on the body of research and SCC decisions in this area to avoid that mistake, and recognize the increased risk to the economy that such an action will engender.

That being said, there is no reason not to seek to more effectively ensure the meeting of Ontario's obligations towards First Nations interests in the archaeological heritage within Provincial development regimes, while ensuring costs are managed and, critically, timely decisions and approval are achieved. Indeed, the studies I was a part of during my time working for the Province and subsequently suggest that the process followed presently is very efficient for the vast majority of development projects requiring archaeological conservation. As such, as I am sure others have, I would argue Bill 5’s solution of all or nothing fails to account for where undue time delay and undue cost (beyond the proper conservation of this sovereign heritage) emerge presently in this process.

As such, I offer a couple of possible alternative strategies to consider, instead of the precarious and confrontational all-or-nothing approach of Bill 5.

A. Shifting Provincial administration of OHA Section VI from development-based fieldwork/report reviewing to auditing licensed outcomes of conservation

I assume the Province is well aware of the criticisms of current Ministry practices when administering Section VI provisions through the review of archaeological practice and licence reporting. These critiques have been extensive, loud and robust for over a decade by public/private development proponents, the professional heritage compliance industry, First Nations, and regularly featured in media. And I would argue for good reason. In effect, the administration of Section VI as currently implemented by the Province fails the Minister’s mandate by misinterpreting the Ministry’s review and acceptance of licence reports under the OHA by licensed archaeologists as a kind of a quasi-development project approval authority. An approval that must be met before those development projects, operating under the EA, Planning and a host of other legislation, can be cleared to proceed.

From my vantage point and experience, it is clear that this mistaken approach by the Province in administering OHA Section VI is the root and source of much of the burden of time and cost delays proponents experience today in Ontario. The relevant branch of the Ministry of Tourism, Culture and Gaming and Ministry of Sport has adopted a highly micro-detailed level of individual report reviewing of the output of the archaeological heritage industry, one that operates under a certainty that licensed professionals, in practice, will have failed the process. This micro-level and time-intensive review flags everything from legitimate issues of practice to close adherence to Standards of practice, procedural variation or typographic errors, as all failures that must require resolution before development can be cleared of archaeological concerns. Having found such issues, no matter how minor, delays are imposed while additional work or reports are undertaken solely to ensure they better adhere to the particulars of standards for adherence to standards' sake.

Using the outputs of the now 15-year-old Customer Service Project (Standards and Guidelines; Licensing terms imposed on practitioners) Ministry review operates as an extensive and detailed second-guessing of professional practice, report by report, across the thousands of projects undertaken each year. Multiple studies have shown that delays and, notably, cost increases for development projects are uniformly tied to a continuous expansion of the Ministry's refusal to accept individual reports at face value submitted by professionally licensed archaeological consultants working on behalf of clients and in consultation with First Nations. This second-guessing has imposed an ersatz development approval authority onto licence report reviews that regularly impose staff interpretation of practice, demands, requirements and extra work that even extend beyond the confines of the limits of a development project, and is wholly uninterested in creative solutions to issues or the massive time and cost delays to projects.

Ironically, this was never the intended outcome of the Customer Service Project. Its intent at the time was to lay down clear guidance on what should be done in addressing archaeological heritage management by practitioners who, by virtue of meeting a defined set of experiential and educational qualifications to be licensed professionally, regularly undertake work for clients/First nations and are the real mediators of heritage conservation within the confines of their client’s development project. I was involved in developing that process at the time, so I can attest that the intended outcome was actually to eliminate individual report review or second-guessing of licensees, project by project. These were to be recognized as the decisions made by professionals. As such, Provincial administration of Section VI of the OHA could shift to focus specifically on a more audited set of outcomes tied much more narrowly to the management of Ontario’s archaeological heritage under the Ontario Heritage Act.

What was intended, and consistent with the OHA being the legislation governing archaeological licensed activity rather than development projects, was regular audits of licensees by reviewing a sample of their reports from the previous year to confirm they generally met broad conservation measurements and professional expectations. Any licensee found, in these audited reviews, to have deviated from defined criteria and measurements of professional conduct would, at first, be cautioned, while chronic issues would lead to the suspension or revocation of their license. Never, however, would that play out by interfering with a development proponent’s good faith completion of required archaeological heritage requirements tied to their development.

Indeed, this was the real intent of enhancing inspection powers for the Ministry – ensuring that the licensee engagement with Ontario’s archaeological heritage was broadly within the aims of the OHA, by meeting clear and measurable criteria of professional conduct, in the cumulative review of licensee performance over year and years, NOT by individual development projects.

So I would strongly recommend the Province consider a significant transformation in how it governs licensed activity under Section VI of the OHA, because it is evident that cost and time delays significantly emerge from the Province's own oversight of its statutory process, not the doing of it by the professional archaeological industry.

Shifting to an audited review of licensee conduct against clear and measurable criteria (developed at the time of the Archaeological Customer Service Project), while ending report-by-report review for compliance, will re-centre the Ministry's administration of Section VI of the OHA to what is the Ministry's mandate, not development activity. Simple submission of final reporting by professional licensees to their client, and the client demonstrating receipt of those reports, should be all that is required for approval authorities to clear heritage requirements for development projects… a process, I would emphasize, that would thus rightly occur entirely beyond OHA mandates, or Ministry staff auditing of licensee activity.

B. Alternative Service Delivery through First Nations Oversight and Advisory Bodies

I should note that over the years, the Province considered the development of several alternative service delivery means to address OHA Section VI requirements. This included an advisory professional Council, using the Ontario Heritage Trust, an existing PHO, or developing an independent Professional Body to govern licensee activity. This option remains a possible tool for shifting oversight back to OHA licensing requirements and away from the development contexts where that licensed activity occurs.

But I would also encourage the Province to consider different means of adopting Alternative Service Delivery, given the transformation of heritage compliance into the clear meeting of the Crown’s constitutional fiduciary responsibilities for Indigenous Interests.

Notably, I would encourage the Province to consider what archaeological licensee oversight would look like if the licensing of archaeologists, the auditing of licensed activity, and the management of Ontario's accumulated material heritage were all managed for the Minister under the OHA by a First Nations-led advisory/approval process. Such an ASD would work through First Nations having a say over who is licensed to work within their defined territory, the content and quality of fieldwork and reporting tied to their sovereign heritage, and what happens to their material heritage after being recovered.

Such a visionary transformation in how the Minister’s interest under Section VI is met would help build trust in the process and direct the aim of the OHA toward the positive outcome of conservation, rather than second-guessing licensed professionals who happen to be working in development contexts, or adherence to standards for standards’ sake. It would also ensure that the practice and the licensed individuals conducting that work clearly operate in the service of the sovereign heritage of First Nations and Ontario.

Adopting such an alternative process would be a major undertaking, requiring First Nations training, capacity building, and support. But the whole practice of archaeological conservation has been generally moving towards this model for 15 years or more. All the Province would be doing is formalizing and structuring this progression going forward.

As a stepping stone towards this integration of First Nations in the decision-making around the practice of archaeology on behalf of the Indigenous sovereign heritage of Ontario, the Province could create regional advisory councils made up of First Nations', senior archaeologists and other stakeholders, to plan, oversee implementation, and address local issues as they arise. Ministry staff would serve as facilitators to the council, and trainers, but the Province would be able to be arm’s length from day-to-day decisions, only needing to step in when the Minister felt it was necessary to affect the outcome of a particular matter.

I am sure many other reasoned and sound approaches can likewise achieve the Province’s aim to unleash the economy, while not creating an all or nothing approach to the Crown’s fiduciary responsibilities.

Again, the Province’s Constitutional responsibilities under Section 35 are not optional, or something that should only be done when not inconvenient. Neither can it be ignored or walked away from, since Section 35 of the Constitution is not subject to the Notwithstanding clause. Thus, Ontario MUST meet its fiduciary obligations for what has been consistently recognized in Canadian courts and internationally as a clear First Nations Right and Interest. Failing to do so will undermine the intent to unleash Ontario’s economy that Bill 5 seeks to achieve, by creating distrust, challenge, and significant risk for those priorities the Province chooses to waive from such requirements.

I trust this comment is helpful as the Cabinet considers its next step. I am happy to expand on the points raised here, should there be an interest in further discussing these points.

Sincerely,

Dr. Neal Ferris
Anthropology/Museum of Ontario Archaeology
Western University