As with Bills 108 and 109 we…

As with Bills 108 and 109 we are troubled by the fact that the proposed changes to the Ontario Heritage Act did not involve engagement/consultation with the heritage community (i.e., heritage planners, local municipalities, heritage volunteers), indigenous communities the public. As such, the proposed changes appear to favour development and have the potential to put heritage at risk. We are concerned how these new requirements will impact the management tools that municipalities already have in place. Further, it is unclear how these proposed changes to the Ontario Heritage Act will result in more housing that is affordable.

We echo the response submitted by the Ontario Association of Heritage Professionals (OAHP) which notes that Bill 23 as proposed, introduces significant uncertainty. It will have unintended consequences and in our professional opinion, could result in greater delays and confusion.

Specifically, we are concerned about the proposed changes to municipal heritage registers that would mean that non-designated properties currently included on a municipal register would have to be removed if council does not issue a notice of intention to designate (NOID) within two years of the amendments coming into force. It is not feasible to review all of these properties for designation within two years. To remove these properties from consideration of future developments is a waste of all the time and money that was spent reviewing and compiling these registers. Municpal heritage registered are not a barrier to development, but rather a tool that assists with managing change and facilitating creative solutions that result in better buildings for the local community.

We support OAHP and ACO in their concern that increasing the threshold for listing and designation will make it more difficult to address reconciliation as well as issues of equity, diversity and inclusion in the protection of cultural heritage resources in Ontario. There are many properties that reflect underrepresented groups that would no longer meet the criteria for designation under Section 29 Part IV. This will mean that the current inequity in the criteria will continue to assign more value to the contributions of architecture and well-documented histories rather than recognizing the diverse stories that make up Ontario’s history. Any revision to provincial criteria must ensure that underrepresented communities can still protect the cultural heritage resources that are important to them. This is a significant concern for our company has as we have been directly involved in efforts to rethink traditional understandings of heritage designations and listings.

As a firm that regularly works with ministries and prescribed bodies, we are also concerned about the proposed changes to Part III of the Ontario Heritage Act. Specifically, that Minister can review determination of whether a property has cultural heritage value of interest for provincially owned properties or provincially occupied properties. Any review of the S&G should be undertaken with key stakeholders. We agree with the analysis provided by OAHP that if this proposed change is to proceed, at minimum there should be a process developed that is transparent and involves additional, or acknowledges existing, consultation. The threshold for the use of these powers should be high. It should only be considered for exceptional circumstances and not as a matter of course.

We find it incomprehensible that MCM is proposing to introduce an enabling legislative authority so the Lieutenant Governor in Council (LGIC) may, by order, provide that the Crown in right of Ontario or a ministry or prescribed public body is not required to comply with some or all of the 2010 Standards and Guidelines for Conservation of Provincial Heritage Properties (S&G) in respect of a particular property, if the LGIC is of the opinion that such exemption could potentially advance one or more of the following provincial priorities: transit, housing, long-term care and other infrastructure or other prescribed provincial priorities. As one of the oldest archaeological firms in the province, we know that the S&G are the trigger for the completion of archaeological investigations on provincially owned properties as well the duty to consult. I can understand the desire for haste when it comes to building new housing, but it is simply inappropriate for provincially-regulated projects to be exempt from the principles laid down in the foundational document for the entire country. The Supreme Court has been clear that there must be no "sharp dealing" on the part of the Crown when it comes to the First Nations who, by virtue of being in a fiduciary relationship with the Crown, have been put at a disadvantage when it comes to protecting their own interests.

Most First Nations communities in Ontario have treaty rights that include the right to hunt, fish, and gather foods and medicines from their treaty lands - into perpetuity. Taking such lands out of circulation as part of a resource development or a housing project impacts those treaty rights. If that process seems too onerous and the government excuses itself from that consultation via the requirement not to comply with its own Standards and Guidelines, it breaks promises which the highest court in the land has determined are unbreakable - and drives home the point made by some Indigenous community leaders that our legal system does not protect the interests of the First Nations." As was made clear in the final report of the Truth and Reciliation Commission of Canada (TRC), whenever Canadian governments have used their authority to ignore or suspend the legal rights of the First Nations, it has both harmed their communities and been an embarrassing blight on our record. It's 2022. We should be past this sort of thing.

Given that cultural heritage is a matter of provincial importance, it is therefore necessary to ensure that conservation of built heritage resources, cultural heritage landscapes, and archaeological resources be included in the list of matters that must be adequately addressed in any proposed bill passed in Ontario.

We add our voice to OHAP’s to urge the Province to ensure that the path forward to addressing the housing crisis not be forged at the expense of built heritage resources, cultural heritage landscapes, and archaeological resources. Cultural heritage can be an integral component in the creation of housing and healthy, sustainable neighborhoods. We further urge the Province to delay the changes until adequate consultation with the heritage industry and indigenous communities on these important issues has taken place.