Thursday, March 12, 2015

Provincial significance and Regulation 10/06

Regulation 10/06 is the companion to Regulation 9/06.  Following a public consultation process, the two regulations were put in place in 2006 to set out the criteria for provincial and municipal designation.

Regulation 10/06 says, in part:

A property may be designated under section 34.5 of the Act if it meets one or more of the following criteria for determining whether it is of cultural heritage value or interest of provincial significance:

1. The property represents or demonstrates a theme or pattern in Ontario’s history.
2. The property yields, or has the potential to yield, information that contributes to an understanding of Ontario’s history.
3. The property demonstrates an uncommon, rare or unique aspect of Ontario’s cultural heritage.
4. The property is of aesthetic, visual or contextual importance to the province.
5. The property demonstrates a high degree of excellence or creative, technical or scientific achievement at a provincial level in a given period.
6. The property has a strong or special association with the entire province or with a community that is found in more than one part of the province. The association exists for historic, social, or cultural reasons or because of traditional use.
7. The property has a strong or special association with the life or work of a person, group or organization of importance to the province or with an event of importance to the province.
8. The property is located in unorganized territory and the Minister determines that there is a provincial interest in the protection of the property.

The question gets asked: why does 10/06 look so different from 9/06, when both are about determining the same thing -- cultural heritage significance -- one at the local/municipal level and one at the provincial level?  Why are there eight criteria instead of three as in 9/06?

Firstly, they're not really different in substance.  Take the first seven criteria (#8 is an anomaly giving the Minister pretty much carte blanche to designate a property in areas where there is no municipality that could designate).  All of the concepts mirror those in the criteria in 9/06 and which fall into three basic categories: design or physical value (#3, #5), historic or associative value (#1, #2, #6, #7), and contextual value (#4).

But, yes, they look quite different. The key thing about the criteria (both sets) is that they were developed for the purposes of designation under Part IV of the Act, and their differences have to do with the distinct designation processes in which they would be used.

The 9/06 criteria were introduced to essentially tighten up and codify the criteria most municipalities were already using to designate property under Part IV.  They were intended not so much to raise the bar for what could be designated (although I think this has been the result -- not necessarily a bad thing? -- especially since the Conservation Review Board has taken them quite seriously and is more likely than previously to recommend against designations on the basis that the criteria have not been met).  Rather, they were intended to prod Ontario municipalities to consider the full range of potential heritage values of a heritage property and to capture that in a more ordered and consistent way, thereby contributing to clearer, more comprehensive and ultimately stronger heritage designation by-laws.

So this explains why the 9/06 criteria -- to be applied by umpteen municipalities -- are more detailed than the 10/06 criteria, designed for the purpose of provincial designation and where you have only a couple of provincial bodies -- t
he minister/ministry and the Ontario Heritage Trust as advisor -- interpreting and applying the criteria.  And where there was already long experience in assessing provincial significance, since that is the usual threshold for OHT property and easement acquisition.

In other words the primary "audiences" for the two sets of criteria are very different.

Remember too that, unlike municipal designation, provincial designation was a new power. The provincial criteria were intended to establish a pretty high bar and limit the Minister's powers to intervene in most situations.  This is reflected in the use of the terms "importance to the province" and "at a provincial level" in the first seven criteria.

There were questions at the time about whether the criteria were still too broad or loose, potentially allowing for the Minister to be "dragged" into too many local controversies.  The answer given was that the criteria themselves were just the starting point and would be implemented via a rigorous evaluation process undertaken by the OHT to ensure that in practice the steep bar for provincial designation was established and maintained.

Next week: Provincial designation -- boon or bust?