Thursday, March 17, 2016

Automatic protection — the holy grail?

What if cultural heritage resources were automatically protected?  No painstaking selection, no long designation process, no council decisions and political shenanigans, no drawn-out, unpredictable reviews or appeals.  The law just decrees that all heritage resources are protected, end of story.

Pure preservationist fantasy, right?

Sure, but one that may not be as far-fetched as we think.

For starters, in Ontario we already have a form of automatic protection for one kind of cultural heritage: archaeological resources.  Archaeological sites are not designated in the usual, discriminating fashion.  [Note 1]  They aren’t singled out according to significance criteria, and their protected status is not conferred (or taken away) through an official decision-making process.

Subsection 48(1) of the OHA says, in part:

no person shall do any of the following unless the person applies to the Minister and is issued a licence under this Part that allows the person to carry out the activity in question:
1. Carry out archaeological fieldwork.
2. Knowing that a site is a marine or other archaeological site, within the meaning of the regulations, alter the site or remove an artifact or any other physical evidence of past human use or activity from the site. (bolding added)

So if you know a site is an archaeological site — defined broadly in the regulations as “any property that contains an artifact or any other physical evidence of past human use or activity that is of cultural heritage value or interest” — you can’t destroy or change the site or remove artifacts from it without a provincial licence authorizing you to do these things.

Again, compare this kind of immediate protection to a designation approach — where the controls kick in only after a sometimes long deliberation involving municipal heritage committees, staff and council and the giving of notice of intention to designate to the property owner and the public.

Why the different approach for archaeology?

Clearly archaeological sites are in the ground, or under water, and are usually obscured or hidden in a way that built heritage resources and heritage landscapes are not.  Most people don’t know they’re there until they stumble upon them (and maybe not even then).  The importance of the site requires expert assessment.  And it is possible sites may contain human remains.  Although, in advance of certain development activity, we require that lands be investigated for the presence of archaeological resources and for potential impacts on them, this by no means covers all situations where sites might be impacted or disturbed.

So you need laws to protect archaeological resources from the point of discovery, and to encourage that discovery sooner, not later.

Speaking of laws, clause 2 of subsection 48(1) was only added in 2004.  Previously — back to 1975 when the Act was passed — the legislation prohibited only what is now in clause 1: carrying our archaeological fieldwork without a licence.  Over the years this proved to be of ambiguous application in cases of looting or other deliberate disturbance of archaeological sites, making enforcement tricky.  There was at least one court case where the party caught stealing artifacts argued they were not guilty of an offence… because they were not archaeologists and were not doing archaeological fieldwork!  It didn’t help that there was no legislative definition of archeological fieldwork or even of archaeological site. [Note 2]

This great loophole got fixed as part of the amendments to the Act in 2002.  The changes separated out “doing archaeology” without a licence — bad — and altering a site or taking artifacts without a licence — also bad.  How bad?  An offence punishable, thanks to a 2005 amendment, by a maximum fine of one million dollars! [Note 3] Not to mention a jail term of up to one year.

Adding further clarity, a bunch of definitions were added by regulation in 2004: “archaeological site” (defined as mentioned above), “marine archeological site”, “archaeological fieldwork” and “artifact.” [Note 4]

To prevent the new automatic protection net from being cast too wide or in too draconian a way — catching the wrong people, or people doing blameless things — the legislation specified that the offender had to have knowledge they were dealing with an archaeological site.  Also, no licence would be required, and so no offence committed, if a person was undertaking normal agricultural work or the routine maintenance of property.  (Or carrying out other activities prescribed by regulation, or on sites prescribed by regulation — although so far there have been no regulations on either of these.) [Note 5]

The final exclusion is an obvious one: where, as a result of doing authorized archaeology on a site, it has “no further cultural heritage value or interest” and a report has been filed to that effect, then — since effectively the site would no longer meet the archaeological site definition — no license is required and the site’s automatic protection shield is lifted for the future.

More on automatic protection — for archaeology... and other types of cultural heritage — next time.

Note 1: It is rare for archaeological sites to be designated, although a few have been; the First Parliament site in Toronto is an example.

Note 2: This also meant that the usual subdivision planning requirement for an archaeological assessment had a tenuous legal footing, since building houses wasn’t “doing archaeology” either.

Note 3: See subsection 69(3). This is the same fine as for illegal demolition of a designated building.

Note 4: See Ontario Regulation 170/04.

Note 5: See subsection 48(2).

Thursday, March 3, 2016

Listing — Designation Lite?

Last I checked Ontario was the only province to have a legislated listing mechanism — that is, a way of giving official recognition to heritage property separate from heritage designation.

How did this develop?  And how did what started out as one kind of animal — a formal identification tool — mutate over time into something rather different.

The genesis of listing goes back to the introduction of municipal designation powers.  If conservation is a comprehensive process with a number of steps — identification, protection, use and interpretation — Ontario municipalities in 1975 finally had a protection tool (albeit one without real teeth).  Effective use of designation, though, relied on the first step, identification: doing surveys, undertaking evaluations and compiling inventories and lists of candidate properties.  The provincial culture ministry promoted these activities and provided training in how to do them.

Many LACACs (Local Architecural Conservation Advisory Committees, predecessors of today’s Municipal Heritage Committees) did develop inventories of worthy properties that they hoped eventually to designate.  In some cases these were even public documents.  But many weren’t — they were of the locked-in-the-desk-drawer, for-certain-eyes-only variety.

And so, since heritage designation was, too frequently, reactive — an urgent response to protect a worthy property from a perceived threat from its owner — owners would be caught off-guard by sudden moves to designate sites on lists they didn't know existed.  And not just the owner, but often the municipal council too!  The idea of designation as something you would spring on people out of the blue to stymie their legitimate expectations did nothing to endear it to owners and decision-makers alike.  And it seemed the antithesis of good planning.

When the province began to seriously contemplate beefing up designation, it became clear that other changes were needed, not just to help make strong controls palatable, but also to improve the coherence and predictability of the designation regime.  The introduction of provincial criteria to guide evaluation of heritage property was one part of this.  Listing was another.

By requiring council approval, listing was intended to “smoke out” the desk-drawer lists and make them public, flagging heritage properties to owners and, importantly, within the municipal administration.  The culture ministry made sure it would also trigger the cultural heritage policies in the Provincial Policy Statement.

Listing had to be made as easy as possible, to encourage its use and reduce the temptation of creating “a list behind the list.”  Process was kept to a minimum with — most notably — no formal notice to owners of properties listed (after all, it was just a list, right?).

And no criteria for what could be listed, except that the council had to “believe” the property to be of cultural heritage value or interest.  The policy thinking was frankly a little fuzzy here — was listing a first step toward designation, with listed properties simply in a “waiting room”; or was listing for less important properties that might or might not meet the criteria for designation?  Or both?

In any case in 2005 listing entered the Ontario Heritage Act, via additions to section 27 enabling municipalities to put non-designated properties on their heritage registers.

Then, only a year later, along came the City of Toronto… or more precisely the City of Toronto Act.  What Toronto wants, Toronto usually gets, and never was this more the case than with province-city negotiations that resulted in the 2006 City of Toronto Act.

Oh, should have mentioned that Toronto, ever the early adopter, had been one of the first to use the new listing powers — rolling thousands of non-designated properties into its Heritage Property Inventory (the heritage register).  [Note 1]  The city liked the idea of listing as a flag and wanted to take it a step further, creating a kind of watchlist for intervention when needed in the form of designation or other action.

But for this to work Toronto argued for the need for time.  Recent changes to the Building Code Act had greatly reduced the discretion of municipal building officials, in the case of non-designated property, to hold off on issuing demolition and other as-of-right permits so as to give the municipality a chance to act to protect the property.

In the end the new City of Toronto Act became a vehicle to further amend section 27 of the OHA to require owners of listed property to give the municipality — not just Toronto but all Ontario municipalities with listed sites — at least 60 days notice of their intention to demolish structures on the property.

While 60 days may not always be adequate time to get the designation wheels in motion, this was the longest period that could be stomached without a major re-do of the listing provisions to provide formal notice to owners (and even so it was a bit of a stretch).

The other thing about the evolution of listing doesn’t involve amendments to section 27, but a growing understanding of how to interpret it.  As we’ve seen [Note 2], once the province prescribed criteria defining cultural heritage value or interest for one purpose — designation — this spilled into other areas where the same words are used.  This has had the effect of clarifying, in a constraining way, the scope of listing.  Back to the question of whether listing could be used for less significant properties that would not meet the test for designation, the answer is now pretty clearly no.

An identification tool that provides interim controls on demolition and has a similar scope to designation — listing has morphed into designation lite.

Note 1: Listed properties do not show up on the provincial register kept by the Ontario Heritage Trust, making the use of listing by municipalities not easy to assess. Says Bert Duclos, Heritage Outreach Consultant with the Ministry of Tourism, Culture and Sport: "There is no requirement under the Ontario Heritage Act for municipalities to report their use of subsection 27(1.2) of the Act. As such, we have no real sense of the numbers (soft or otherwise) of municipalities that use it. Most of the bigger municipalities likely use subsection 27(1.2). Out of the 414 lower/single tier municipalities and using an arbitrary population threshold of at least 50,000, in reviewing them I’m relatively comfortable in stating that all 41 of them use subsection 27(1.2). But I have no data to back that up. Of the remaining 373 municipalities I couldn’t even hazard a guess how many use it. Probably well less than half."

Note 2:  See “‘Cultural heritage’ and the fuss with definitions”, from January 21, 2016