Comments on: Guide to…

Comments on: Guide to Cultural Heritage Resources in the Land Use Planning Process.
From: The Ontario Association of Professional Archaeologists (APA).

The APA is the only professional body representing consulting archaeologists in the province of Ontario. Our members do have interests and concerns with the draft guide to cultural heritage resources. We first summarize some specific fundamental problems and then attach member comments on individual concerns. The Guide provides a very useful overview of current provincial policy and municipal responsibilities and tools to address heritage and archaeological concerns. Unfortunately, while the Ministry of Tourism, Culture and Sport (MTCS) may be available to provide training and advice, the reality is that MTCS resources are inadequate for this task in any comprehensive sense. In our experience, dealing with thousands of archaeological and heritage resource assessments, municipal officials generally lack the training to address these issues and, in that sense, are poorly positioned as approval authorities. As consulting archaeologists, we spend considerable amounts of time trying to address questions from municipal approval officials who are unfamiliar with the process. A much greater effort needs to be made at training municipal officials in a systematic manner, meaning training sessions for large numbers of municipalities and not just addressing whomever seeks advice. The entire process is undermined by this strategic failure of municipal approval authorities to fully understand the process and their obligations. They deserve adequate training to tackle heritage and archaeological issues with a full appreciation of both legislative tools at their disposal and levels of heritage significance. The pre-screening, self-help documents such as the Heritage Impact Assessment are a half way measure at municipal training, effective only if you understand all of the basic principles. Lack of infrastructure support and necessary comprehensive training to municipalities and their staff is the critical failing. MTCS is much better placed to be the approval authority with staff who already understand the system. MTCS used to function as the approval authority.

Statements in the archaeological sidebar on First Nation engagement lack the clarity that is required of regulations governing those who must engage, such as archaeologists under the Standards and Guidelines for Consulting Archaeologists. The existing Technical Bulletin on Aboriginal Engagement confuses the issue by mixing advice and regulations on engagement. Archaeologists are required to meet only two Standards, period. Archaeologists and proponents want to know exactly what is required, not what is wished or would be nice. Regulations need to be clear and concise, not subject to interpretation or with qualifying phrases in other locations. Section 7.3 The Duty to Consult Aboriginal Communities section of the Guide is disconcerting because it fails to fully address the responsibility of the Crown, in this case MTCS. The United Nations Declaration on Indigenous Rights, Article 11 is very specific on the obligations of the State in respect to indigenous heritage and specifically includes archaeological and historical sites and artifacts, which in Ontario definitely fall under the aegis of MTCS and the Heritage Act.

From the UN Declaration: Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs. The position of the Ontario government … that municipalities have a duty to consult in some circumstances. effectively evades the Crown responsibility of MTCS, as an agency which regulates the practice of archaeology in Ontario, to directly consult with First Nations. The Supreme Court of Canada 2004 decisions on the Haida and Taku cases specifically state: Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown. This does not mean, however, that third parties can never be liable to Aboriginal peoples. Most archaeologists have, for years, thought that they had a Duty to Consult because of the MTCS Aboriginal Engagement Bulletin. They actually have no such duty. Nor do their clients who are also third parties in this legal context. Even some First Nations misunderstand and have been writing to archaeologists insisting that their clients (project proponents) have this duty. This flies directly against the 2004 Supreme Court decision in Haida and Taku. The Duty to Consult, the Honour of the Crown, can not be delegated to third parties. The province of Ontario and all of its Ministries need to step up and assume direct responsibility for the Duty to Consult, government to government, with First Nations and not attempt to download this responsibility onto third parties or municipalities not under its jurisdiction. This is a poor decision and will cause endless problems with First Nations on the critical issue of their archaeological heritage. At the same time, training efforts with municipal approval authorities need to be dramatically improved or else MTCS should resume its function as that authority and assume all related obligations such as the Duty to Consult. Other Ontario Ministries have well established policies in this regard and it is a mystery why the Ministry charged with administering the Heritage Act does not.

Appendix A – Specific Member Comments on the Guide text and Sidebars Page 42 Archaeological resources can only be identified by a consultant archaeologist, but a determination of whether an area has archaeological potential can be made by a non - archaeologist. 1. A “non-archaeologist” may make significant errors in potential calls about the viability of archaeological resources within an area. For example, would a proponent or landowner be allowed to make such calls? Would this allow a proponent or landowner the ability to physically disturb a property then make a determination of “No Potential”. This would circumvent the need for archaeology as no base line trigger would be established as the potential call indicates no potential. Trained individuals must be making calls of archaeological potential.

Approval authorities can determine whether or not a property is within or contains an area of archaeological potential using an archaeological management plan (AMP).

1. Firstly, Archaeological Management Plans do not currently require a PIF nor any approval or review by the MTCS. As such, they should not be used to remove archaeological potential from any area. There are numerous examples of archaeological resources being present within an area of “No Potential” on AMP’s. Further, it is known that various approval authorities are issuing grading and land altering permits to land owners PRIOR to any archaeology occurring, often with impunity as no follow up or investigation is done by the MTCS.

Page 47 SIDEBAR: How old is too old for a previous assessment to still be viable?

This is ambiguous and needs clarification, if the MTCS can now deem reports in register as unviable further explicit detail is required to be provided both to the consultant and development communities. These pre-2011 documents have been legally reviewed and cleared (approved) under the 1993 Standards. -------------

This draft version of the Guide does address relevant components of the PPS that were incorporated in 2014, namely 1.7.1, 2.6.4, and 2.6.5. The Guide is designed to assist approval authorities to understand the intricacies of evaluating and protecting a wide variety of cultural heritage resources within the scope of the land use planning process. Although there are some tools in place to assist staff within approval authorities to meet the expectations in evaluating whether or not an Archaeological Assessment is required or whether or not a completed assessment (i.e. Archaeological, Heritage Impact, CHER) contains appropriate conservation recommendations, not all of the support from the Crown is in place to ensure that the approval authorities are fully prepared to fulfil their role. Part of this systemic issue is that there are not enough resources made available by the Crown to support the kind of consultation and engagement spoken about in the Guide that will lead to reconciliation. A summary listing of my concerns includes: - approval authorities include municipalities and conservation authorities, but not First Nations or other Indigenous communities or agencies as is the case in other provinces (e.g. British Columbia): Establishing approval abilities for descendant peoples is a logical step towards reconciliation, and it must be recognized that situations with overlapping traditional territories require unique consideration. - the determination of archaeological potential can be made by a non-archaeologist: The checklist for archaeological potential that was developed by MTCS does not stress enough the importance of the input that can be provided by Indigenous Traditional Knowledge keepers. - in many cases the skill sets have not been adequately developed within approval authorities to effectively assess cultural heritage assessments or the long-term relationship-building required for effective consultation and engagement: There must be increased skill sets within all approval authorities to ensure that they have enough knowledge about the various types of resources to determine whether or not conservation can be ensured before approving development proposals, as well as increased resources and skills associated with meaningful consultation and engagement processes. - the existence of an up-to-date Archaeological Master Plan is considered critical within the process of protecting and conserving cultural heritage resources: All municipalities need to be supported in order to develop and to refresh their plans. - where the Crown’s Duty to Consult is triggered, and the Crown determines that a municipality should be the approval authority because they may be uniquely placed to consult and accommodate: There needs to be a clear Consultation and Engagement Plan agreed upon from the outset, so that consultants such as archaeologists know their engagement roles and limitations -- i.e. not a Duty to Consult, but a Responsibility to Engage. ------------

Anyway, key point for me is on Aboriginal engagement contained in the 'Sidebar: Archaeological Fieldwork'. The wording is something like: Stage 1, and is required at the end of Stage 3 when assessing the cultural heritage value or interest of certain site types and at Stage 4 when forming mitigation strategies for certain site types. I feel that the wording should be clarified to indicate that the MTCS S&Gs encourage engagement with Aboriginal communities at Stage 1, and requires engagement in Stages 3 and 4 under the Standards; however, many First Nations seek engagement with archaeologists at all stages in assessment. More extensive engagement may lead to more productive engagement overall, and improve outcomes to the assessment if regulatory requirements are explicit. ------------------ The recent release of archaeological project data to various Indigenous Communities throughout the province is wrought with issues:

• “Duty to Consult” is a requirement between Nations, that being First Nations and the Crown. The current system has such consultation falling onto the shoulders of Professional Licensed Archaeologists in the guise of Engagement. Archaeologists are personally licenced and have no Duty to Consult.

• Given the lack of governance enacted on this matter by the MTCS, land owners, who are the ones who will bear the financial cost of “engagement” now must choose between various First Nations as overplaying land interests occur within the province. In effect, a land owner can be and are paying numerous First Nations for engagement, which at times surely costs more than the baseline costs for commercial archaeological assessments.

• The recent rush by the MTCS in June 2017, without stakeholder consultation, to release archaeological and development project information to Indigenous groups is in no way “engagement” by the Crown, but a knee-jerk reaction to Federal actions regarding Truth and Reconciliation. True consultation should be done by the province within the MTCS itself, with the crown bearing all costs associated with it.

• Ongoing issues with engagement as“consultation” currently in effect, now place the permission to have monitors on a site directly with the development proponent. Multiple First Nations may claim the right to be engaged on a project, even ones who have no treaty land base in Ontario. Widely varying but quickly increasing costs associated with such engagement will force a proponent to seek the most fiscal form of engagement.

• There are varying contradictions present within the current engagement climate. Currently, many First Nations have over lapping claims and rulings over what can occur on lands in the province, one First Nations group may wish sites to not be subject to excavation, while others do. No matter what decision the Field Director makes, they will be in contravention of any such engagement. It is an unregulated situation for any consulting archaeologist who is a private citizen --------------------------- Submission from the Ontario Association of Professional Archaeologists Executive and its Professional Members.

Lawrence J. Jackson
Vice President (APA)

[Original Comment ID: 211336]