The Ministry of Culture is charged under Section 2 of the Ontario Heritage Act with the responsibility
to determine policies, priorities and programs for the conservation, protection and preservation of the
heritage of Ontario and so fills the lead provincial government role in terms of direct conservation and
protection of cultural resources. The Minister is responsible for encouraging the sharing of cultural
heritage and for determining policies, priorities and programs for the conservation, protection and preservation of the heritage of Ontario. These goals are generally accomplished through other legislated processes, such as those required by the Planning and Environmental Assessment Acts, rather than directly through the Ontario Heritage Act itself.
The Ontario Heritage Act does, however, govern the general practice of archaeology in the province.
In order to maintain a professional standard of archaeological research, consultation and curation, the
Minister is responsible for issuing licenses to qualified individuals. Without such a licence, all
archaeological activities involving exploration, survey or field work, or any other activities that
result in alteration (meaning unsanctioned disturbance or destruction of archaeological resources
brought about by any means [i.e., either archaeological excavation, site looting, or development]) of an
archaeological site, are illegal. Indeed, in changes to the Heritage Act, outlined in the Government
Efficiency Act (2002), it became illegal for any person or agency to alter an archaeological site
without a permit.
This in effect offers automatic protection to all archaeological sites. All planning jurisdictions
should exercise due diligence in all planning contexts to ensure that archaeological features are
protected from disturbance of any nature. The penalty for altering a site without a permit is $1,000,000.00.
All reports submitted to the Ministry, as a condition of an archaeological licence are reviewed
by Ministry staff to ensure that the activities conducted under a licence meet current technical
guidelines, resource conservation standards, and the regulations of the Heritage Act. The regulation
of archaeological activities carried out within the development context requires that all approval
authorities must integrate the requirements of the Heritage Act within their land use planning
processes, which are generally governed by either the Planning Act or the Environmental Assessment
Act. Despite the on-going provincial transfer of review responsibilities to municipal governments,
well over 1,000 formal development applications throughout the province, under both Environmental
Assessment and Planning Act processes, are reviewed annually by the Ministry of Culture.
Consequently, approximately 300 to 500 archaeological sites have been documented annually in southern
Ontario since 1990 as a result of planning mechanisms.
In respect of the exercise of any authority that affects a planning matter, Section 3 of the Planning Act requires that decisions affecting planning matters “shall be consistent with policy statements issued under the Act”. With respect to archaeological resources, the most recent Provincial Policy Statement, which came into effect March 1, 2005, states that:
For the above policy statement, significant archaeological resources are defined as those “that are valued
for the important contribution they make to our understanding of the history of a place, an event, or a
people.” The identification and evaluation of such resources are based upon archaeological fieldwork
undertaken in accordance with the Ontario Heritage Act.
Provincial interests in land use planning are also detailed in the Provincial Policy Statement provided in
Section 3(1) of the Act, as amended by the Strong Communities Act (2004), whereby:
Thus all decisions made during the development process, regardless of the identity of the development
proponent or the relevant approval agency, must address potential heritage resource impacts. Given the
provincial interest, any planning activity referred to in the Act, including the preparation of Official
Plans or any planning application, shall be consistent with the statement of provincial interest. The statements
in the Act are sufficient for a municipality to require that an archaeological assessment be completed
prior to the approval of a planning application.
In the interest of meeting legislated processing deadlines under the Planning Act, it is appropriate
and acceptable to make the requirement to undertake an archaeological assessment a condition of approval
rather than a pre-requisite.
In the case of a zoning by-law, however, the Act allows a municipality to attach a holding “H” symbol to
a zoning by-law and require that as a condition of removing the holding symbol, and before development
can proceed, an archaeological assessment or other matter be completed. Site Plan Control requires the
approval of plans by the municipality, which implies that due regard, has been given to matters of
provincial interest. Agreements can be entered into regarding the site plan matters approved and the
agreement can include a requirement for an archaeological assessment.
In regard to municipal projects, the Planning Act states that where there is an Official Plan in effect,
no public work shall be undertaken that does not conform with the Plan.
The Act also permits municipalities to pass zoning by-laws: “for prohibiting any use of land and the
erecting, locating or using of any class or classes of buildings or structures on land that is the site of
a significant archaeological resource”.
In summary, a municipality is obligated, within the existing legislative framework, to require
archaeological concerns be addressed in connection with any planning application and is able to pass
zoning by-law(s) regulating the use of land that is the site of a significant archaeological resource.
Moreover, a municipality is prevented from undertaking any public work that does not comply with its
Official Plan. Heritage protection policies are appropriate in Official Plans, if developed and
incorporated properly. If a municipality has a sound basis in its policies (Official Plan), it is possible
to refuse applications that do not conform to heritage requirements.
The Heritage Operations Unit of the Ministry of Culture has the primary responsibility under the Planning
Act for matters relating to cultural heritage including archaeological resources. One of their primary
responsibilities is to oversee the Municipal Plans Review process. The first component of this process
is the determination of the potential for a development application to impact archaeological resources,
based on a range of environmental and historic criteria. Should it be determined that there is potential
for impacts to archaeological resources resulting from the approval of the development application, then
the second component is the requirement that the development proponent undertake an archaeological
assessment, the results of which are subject to Ministry of Culture review and approval. Such assessments
may be required for official plan amendments or plans of subdivision, and may also be required for
smaller-scale developments reviewed under consent and zoning by-law amendment applications. In all of
those cases where potential is identified on all or a portion of a subject property, a standard
archaeological condition is attached to the development application.
The current condition recommended by the Ministry of Culture reads:
While a generic primer has been developed by the Ministry of Culture (1997)
for informing municipal planners about evaluating archaeological potential,
those municipalities that have undertaken detailed
archaeological potential studies or master
plans have
access to much more detailed information, that provides more effective and
accurate means of determining archaeological potential and whether or not an
assessment will be required. Review of the resulting archaeological investigations,
in order to determine that Heritage Act and Planning Act requirements have
been satisfied, remains the responsibility of the Ministry of Culture, which
provides notification to the approval authority and the development proponent
of the results of their review. That Ministry also administers all matters
related to the management of the resources documented, mitigation strategies
proposed, and any disputes arising from the conservation of archaeological
resources under the land use planning process.
The Environmental Assessment Act applies to public sector projects and designated private sector
infrastructure projects (roads, hydro generation and transmission, sewage, water, landfills, etc.).
The purpose of the Act is the betterment of the people by providing for the protection, conservation and
wise management in Ontario of the environment (Section 2). Environment is very broadly defined to
include “the social, economic and cultural conditions that influence the life of humans or a community”
[Section 1(c) (iii)] and “any building, structure, made by humans” [Section 1(c)(iv)]. Thus,
environment would include heritage artifacts and structures.
The Environmental Assessment Act requires the preparation of an environmental assessment document,
containing inventories, alternatives, evaluations and mitigation. It is subject to formal government
review and public scrutiny and, potentially, to a tribunal hearing. Heritage studies of these major
undertakings are a common component. There are also Municipal
Engineers Association (MEA) Class
environmental assessments for municipal projects that require similar considerations, but entail a
simplified review and approval process.
Various provincial ministries are establishing protocols related to activities subject to the
environmental assessment process, in order to ensure that heritage concerns in their respective
jurisdictions are addressed. The Ontario Ministry of Transportation, for example, ensures that
archaeological surveys are undertaken in advance of all new road construction in order to ensure that
no archaeological sites will be unknowingly damaged or destroyed, and the Ontario Ministry of Natural
Resources prepared a set of guidelines on the conservation of heritage features as part of the Timber
Management Planning Process.
Other land use legislation in the province provides opportunities for cultural heritage resource
protection. The Aggregate Resources Act, governing approval of pits and quarries and administered by the
Ministry of Natural
Resources, recognizes the potential impact quarrying activities may have on cultural
features such as archaeological resources. The process for addressing archaeological concerns is similar
to that for Planning Act related projects.
The Cemeteries Act also addresses the need to protect human burials,
both marked and unmarked, which are yet another valuable link to the past. Burial
locations uncovered on archaeological sites constitute
“unregistered cemeteries” that are, in essence, in violation of the
Cemeteries Act. The discovery of such burials will require further investigation
in order to define the extent and number of interments, and either the registration
of the burial location as a cemetery, or the removal of the remains for re-interment
in an established cemetery. The actual workings of this process are complex and
vary depending upon whether the burial(s) are an isolated occurrence, or part
of a more formal cemetery, and whether the remains in question are Aboriginal
or Euro-Canadian. In all cases, the success of the process is dependent upon
the co-operation of the landowner/development proponent, the next of kin (whether
biological or prescribed), and the Cemeteries Registrar (Ministry of Consumer
and Business Services). The Ministry of Culture´s role in the process
is to assist in co-ordinating contact and negotiation between the various parties,
and ensuring that archaeological investigations of such burial sites meet
provincial standards.
Finally, the Provincial Parks Act recognizes that potential negative impacts to archaeological sites
may result from the activities of visitors to parks, insofar as it states that no person shall
“damage or deface any relic, artifact or natural object or any site of archaeological or historical
interest within a provincial park” nor, “except with the written permission of the Minister...
remove any relic, artifact or natural object;... disturb any site of archaeological or historical interest;
... make an excavation for any purpose; or...conduct research, within a provincial park”
(R.R.O. 1990, Reg. 952, s. 2). This assertion of the rights of the Minister of Natural Resources to
oversee archaeology within provincial parks contradicts the assignment of this role to the Minister of
Culture under the Heritage Act. Neither the Ministry of Natural Resources nor Ontario Parks has specific
legislative authority to actively conserve and manage cultural heritage resources, except in programming
of Provincial Historical Parks and Historic Zones within Provincial Parks.
Particular geographic areas, which may transcend municipal boundaries are also subject to specific pieces
of land use planning legislation. Of particular relevance in this regard is the Niagara
Escarpment Plan(1994), which emerged from the Niagara Escarpment Planning and Development Act, and is the principal
provincial planning document for the Niagara Escarpment. Its purpose is to provide for the maintenance of
the Niagara Escarpment and the land in its vicinity as a continuous natural environment, ensuring only
compatible development and appropriate conservation measures for cultural heritage resources, known and
potential. Niagara Escarpment Commission
Development Control Regulations replace regional (Official Plan)
zoning considerations within the Niagara Escarpment planning area.
Finally, the Greenbelt Act (2005) provides for a permanent greenbelt in southern Ontario intended to
protect environmentally sensitive lands and manage urban growth. These lands are chiefly part of
significant natural heritage and watershed systems. The Act is also intended to protect irreplaceable
cultural heritage and recognize and promote cultural sites, districts and landscapes, which are important
to a community’s identity, character and history.
With this legislative planning context, success in protecting heritage features depends on sufficient
resource information, sound policies, the capability to implement requirements, and participation by
both local and provincial heritage planners in the process.