Thursday, March 19, 2015

Provincial designation -- boon or bust? (part one)

Provincial designation... whew, what a topic!  We might have to take it in parts.

I guess we could start with the 1975 Ontario Heritage Act, which provided for designation by the Minister only of property of archaeological or historical significance under Part VI of the Act.  This power had been in the predecessor legislation, the Archaeological and Historic Sites Act, and had been used just three times before 1975 to designate properties for their archaeological importance. (These three sites were "grandfathered" into the new Act and are deemed to be designated under Part VI).

With respect to what we now call built heritage, what was originally conceived was a binary or two-tiered designation regime like that in other provinces where designation of provincially important property would be the responsibility of the province and designation of locally important property would be up to municipalities.  But the draft provisions that would have given the Minister of Culture and Recreation the power to designate were stripped from the legislation before it was introduced, so only local councils gained this new power.

The reason given for this is that the government caucus of the day, in reviewing the draft bill, was concerned that provincial designation "would unwisely involve the province in the restriction of private property rights.” (see Note 1 below).  This seems odd, as the same argument would have applied to the new municipal designation powers.  One possible explanation is that the proposed provincial powers were stronger than the municipal ones and provided for permanent rather than interim control on demolition.  (Note to self: get to the archives and check this out!)  So too much teeth for the Tories of the day?

In any case it’s clear that from the genesis of the OHA there has been a tension between the roles of the province, which before 1975 had been predominant, and municipalities.  This has manifested itself most starkly over provincial designation (let's just call it PD).

The historic reluctance on the part of the province to be involved in designating property of architectural value does not seem to have an ideological or philosophical basis (unlike the private property rights argument against designation).  The push for designation powers had come from municipalities like Kingston and Toronto and with the passage of the OHA it was felt they should be left to get on with it.  And there was the ministry’s concern, expressed early on (Note 2), that PD would draw the province into “local” controversies.

This concern resurfaced big-time in the policy debate leading up to the 2005 changes and in the 2006 discussions about Regulation 10/06 (the criteria for provincial significance) and the province's process for handling PD requests.   

Which we’ll get into next time…

Note 1: From Victoria Angel's 1999 paper, "The Ontario Heritage Act and the Provincial Program: An Alternative Model for Heritage Conservation", p. 99.   This view is supported by Steve Otto who told me this week that the deletion resulted "not from fears of infringing on local autonomy [as I had supposed] but as an inroad on the rights of owners of private property."  At the time Steve was executive director-to-be of the Ontario Heritage Foundation, now the Ontario Heritage Trust.

Note 2: Victoria Angel's paper quotes a telling 1974 memo from then Assistant Deputy Minister Doug McCullough in which he says, in part: "...the legislation should be worded so that the main thrust is of enabling municipalities to designate...", p. 95.

Next week: Provincial designation — boon or bust? (part two)