Proposed Regulation under the Ontario Heritage Act – Archaeology Exemption Criteria

Background and Context

Schedule 7 of the Protect Ontario by Unleashing our Economy Act, 2025, introduced legislative amendments to the Ontario Heritage Act (OHA) that focused on Part VI of the OHA, which deals with the conservation of archaeological resources. These changes introduced a tool to exempt properties from some of the requirements of Part VI to support provincial priorities and also updated enforcement and compliance measures including establishing Part VI.1 Investigations.

The OHA has been amended to provide the Lieutenant Governor in Council (LGIC) the authority, via an Order in Council, and subject to regulations to exempt a property from Part VI (Conservation or Resources of Archaeological value) of the OHA and provisions within other statutes that direct that archaeological assessments be undertaken. This authority is not yet in force.

Proposed Regulatory Framework

The Ministry is seeking to obtain feedback on the regulatory framework under the Ontario Heritage Act for the Archaeology Exemption Criteria.

The proposed draft regulation sets out:

• The criteria which must be met for a property to be eligible for an exemption from archaeological assessment.
• Requirements that must be fulfilled by the sponsoring minister and that minister’s ministry when seeking an exemption order, including notification.
• Requirements pertaining to the necessity of the request for exemption, including the identification of the economic significance or strategic importance to the Ontario economy of the proposed activity on the property.
• Measures to ensure the ongoing protection of significant known archaeological sites, burial sites, cemeteries, sites of former Indian residential schools and properties protected by designation or easement under the Ontario Heritage Act that contain known archaeological sites.

To guide effective implementation of the proposed draft regulation, MCM is also considering the development an operational policy to provide further detail and guidance on exemption requirements and process.

Proposals under consideration for the operational policy at this time include:

• Information that the sponsoring ministry would be required to provide to demonstrate that the exemption meets the criteria set out in regulation, including why an exemption is needed at that point in time, expected economic and/or social benefits and how it supports provincial priorities.
• Potential confirmation of consultation plan by sponsoring ministry.
• A screening process conducted by MCM to determine whether there are known sites of archaeological significance or archaeological potential to help inform decisions on the exemption.
• Additional information on conditions that may be placed on exemptions, where approved.

Summary of Feedback To-Date

The ministry previously consulted on the Environmental Registry of Ontario from April 17 to May 17, 2025 on Schedule 7 of the Protect Ontario, Unleashing Our Economy Act, 2025 and received over 540 comments with feedback largely focused on the exemption authority and the government’s process for consulting on Bill 5. Key themes included:

• Need for Indigenous consultation prior to an exemption from archaeological requirements being granted.
• Concerns about the reduced protection and conservation of archaeological sites and unknown burials.
• Concerns about potential job losses within the archaeology sector and impacts on municipal decision making.
• The range of provincial priorities which would qualify for exemptions.

Overall, feedback emphasized working collaboratively with Indigenous communities to ensure there are mechanisms in place for the protection of archaeological resources. The ministry considered this feedback in the development of the regulatory proposal.

Additionally, the ministry has sought feedback on this regulatory proposal through information sessions and consultation meetings with Indigenous communities/organizations over the summer. These discussions are continuing throughout this fall. Ontario is committed to fulfilling its duty to consult and, where appropriate, accommodate and will continue to carefully consider feedback as consultations continue.

As of September 19, 2025, feedback from Indigenous communities on the proposed criteria has highlighted the need for the proposed regulation to:

• Ensure Duty to Consult obligations are met as part of the process.
• Provide clarity around the role of Indigenous communities in the exemption request process.
• Recognize the importance of Indigenous knowledge in the identification of significant known archaeological sites.
• Implement an appropriate screening process to identify potential archaeological resources and mitigate risks to archaeological sites.

To respond to the feedback heard during consultation with Indigenous communities, MCM has built in notification requirements to Indigenous communities that may be adversely impacted by the exemption, adjusted the definition of Significant Known Archaeological Site so that it includes Indigenous knowledge, and identified sites that are not eligible for exemption to mitigate risks to archaeological or burial sites.

Further details to support Indigenous consultation and screening for potential archaeological sites is being proposed for incorporation into operational policy and will be further discussed as part of the ongoing consultations.

MCM will also be consulting with Indigenous communities on proposals for the Heritage Framework Transformation (HFT) this fall, including an examination of the current provincial Standards and Guidelines for Consultant Archaeologists, related process timelines and reporting requirements and compliance rates. Comments from Indigenous communities regarding the role of Indigenous communities, the Standards and Guidelines for Consultant Archaeologists, capacity funding, have been documented for consideration as part of the upcoming HFT consultation process.

Ontario is committed to continued consultation and collaboration with Indigenous communities. The draft regulation is being provided as part of an ongoing consultation process to assist Indigenous communities and the public to understand and provide informed comments on the proposals as they exist to date. The feedback received from all consultations and engagements will be considered and MCM may make further adjustments to the draft regulation as it is finalized. In addition, where relevant and appropriate, feedback provided will also be considered as part of the MCM’s Heritage Framework Transformation process.

The Ministry has attached the following materials:

1. Summary of Feedback Incorporated into Draft Ontario Heritage Act - Archaeology Exemption Criteria Regulation

   This attachment summarizes the feedback the Ministry has received to date from Indigenous communities on the policy intent for the proposed OHA Archaeology Exemption Criteria regulation. It summarizes the feedback that has been reflected in the proposed draft regulation, feedback that is still being considered as part of the drafting process, and feedback that is not being considered further.

2. Proposed Draft Regulation for Ontario Heritage Act – Archaeology Exemption Criteria

   This is a draft of the OHA Archaeology Exemption Criteria regulation that incorporates some of the feedback received to date from Indigenous communities on the policy intent. The draft proposed regulation is being provided as part of an ongoing consultation process to assist the public and Indigenous communities to understand and provide informed comments on the proposals as they exist to date.

The Ministry invites feedback on the draft proposed regulation which will be considered by the Ministry prior to finalizing the proposal. The draft proposed regulation may continue to evolve as the ministry consults with, and reviews and considers feedback from Indigenous communities and the public.

Analysis of Regulatory Impact

The regulatory proposals, if approved, would support implementation of amendments to the OHA made through the Protect Ontario by Unleashing our Economy Act, 2025. The addition of the new definition in regulation is intended to provide clarity and would not result in cost or time savings for regulated entities or the public more broadly. The intention of the proposed regulatory framework is to establish criteria for exemptions.

Work is currently underway to analyze possible compliance costs and savings for licensed consultant archaeologists, who are regulated entities under the OHA, and for other impacted stakeholders and individuals that may result from the implementation of the new authority to exempt properties from archaeology requirement. This includes costs and savings resulting from any proposed criteria that would guide where a property might be eligible for an exemption. To inform this analysis, we encourage you to provide feedback.