Thursday, March 26, 2015

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

As we saw last time, provincial designation was taken out of the draft legislation before it was introduced in 1974.

Thirty years later, in 2004, it was put back! In the drafting of Bill 60, it was added to Part IV as section 34.5 and became law with the passage of the bill in April 2005.

The reasons for this could be summed up as follows:
  • every other province had provincial designation; most gave the power to the minister responsible for culture and heritage while one or two gave only the entire cabinet this authority
  • in other fields, Ontario had over the years increasingly recognized that certain resources had provincial importance (wetlands, for example) and given the responsible ministry regulatory powers to protect them
  • in the long consultations leading up to the legislation there were consistent calls for the province to assume a greater role in built heritage conservation
  • the repeated cases since 1975 of municipalities, for one reason or another, failing to recognize and take action to protect cultural heritage of provincial significance and the likelihood of future cases, even with increased municipal powers over demolition.
From a policy standpoint this last point may be the most compelling.

Could municipalities be blamed for not recognizing a building or property of province-wide importance when they saw it?  Even if, as most would agree, a provincially significant property is by definition also locally significant, how were municipalities to know which properties were “more” important (in the sense they were significant to a wider provincial community) and deserving of greater efforts to protect them?

So giving the culture minister the power to designate cultural heritage properties of provincial significance, along with a stop-order power to intervene quickly when necessary, seems the answer.  In designating a property the minister would be required to get the advice of the Ontario Heritage Trust, which has a long track-record of assessing provincial importance for purpose of its own programs, such as its conservation easements program.

But there would be another, more constraining check on these new powers.  To be designated a property would have to meet special criteria for provincial significance set out in regulation (put in place a year later as Reg. 10/06).  Even use of the stop order required the minister to be “of the opinion” that the property might meet the criteria.

These checks and constraints attempt to address two related concerns: (1) that the new provincial powers not unduly intrude on municipal autonomy (after all, with the exception of those in unorganized territory in the North, all heritage properties are located in municipalities); and (2) that the province not be pulled into essentially local heritage controversies where there is no clear provincial interest.

So much for the policy behind the new powers.  How have they worked in practice?  So far, not so well, to say the least.  Whether this is the result of a policy weakness or a political failure, or both, we’ll look into next time.

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