Automatic protection — are old buildings next?

Picking up from last time… if we can — and do — have automatic protection for archaeological sites in Ontario, why not for other kinds of cultural heritage?

As we’ve seen, the protection extended under Part VI of the Ontario Heritage Act is not the same as that afforded by heritage designation under Parts IV and V.  In the context of our land use planning regime, archaeological sites receive instant legal protection from the moment of discovery, with the law compelling a strict process be followed to assess the site and determine its future.  Long-term protection, where that is warranted and feasible, will normally rely on other mechanisms — easements, zoning changes, public acquisition (even designation, as with the First Parliament site in Toronto).

Outside the cultural heritage sphere, what might be gleaned from automatic protection in other areas?  We also use AP approaches for aspects of our natural environment.  Take trees for instance.  The Municipal Act gives municipalities broad powers to prohibit or restrict the removal and injuring of trees.  Not selected trees, but all trees meeting a basic definition. [Note 1]

The City of Toronto, for example, protects any privately owned tree more than 30 centimetres in diameter as measured at 1.4 metres above ground level.  You need a permit from the city to injure or destroy a tree and your permit application requires a certified arborist’s report.  There are a few exemptions, of course: no permit is needed if a tree is confirmed by city staff to be 100% dead, imminently hazardous or terminally diseased.  It’s also clear that a tree loses its protection if the city approves new development for the site. [Note 2]

So how about a similar kind of automatic protection for old buildings?  In a recent pitch to MPPs and government ministers at Queen’s Park, Architectural Conservancy Ontario seems to be calling for exactly that.  ACO observes that in Toronto “trees have more protection than buildings” and calls on the province to “create a regulatory bias for conservation” — ending “the right to destruction” by “reduc[ing] access to demolition permits under the Ontario Building Code.” [Note 3]

ACO doesn’t say exactly how this would be implemented.  But one approach could be to protect from demolition any building over a certain age, say 40 years, for a temporary period, say 60 days, to give the municipality a chance to assess the importance of the structure, consider the competing public/private interests at play, and put in place designation or other more permanent protection measures.

Could this work?

We already have a comparable interim protection for heritage property formally listed under the OHA.  In that case the owner of the property can’t demolish unless they give 60 days notice.  Of course, this protection is not conferred automatically — the property must be individually listed by the municipal council, requiring some evaluation of the property and a “belief” that it has cultural heritage value.  The procedural requirements for listing may be fairly minimal compared to those for designation but this is still a selection-based as opposed to an automatic model. [Note 4]

Perhaps the closest thing we have in Ontario to what ACO proposes is in the protection of provincially owned property subject to the mandatory Standards & Guidelines for Conservation of Provincial Heritage Properties.  Paragraph B.4. says:

If a ministry or prescribed public body has not evaluated a property in its care or control, and if that property contains a building or structure that is 40 or more years old, then the ministry or prescribed public body shall:

a. prevent the building or structure from undergoing demolition by neglect; and

b. obtain the consent of the Minister of Tourism and Culture before removing or demolishing the building or structure, or before transferring the property from provincial control. (emphasis added)

What this means is that every 40-year-old-or-more structure in Crown ownership or control is protected from demolition and sale — until such time as it has been evaluated, using other standards in the S&Gs, and determined either to be a “provincial heritage property” or not.  (If it is a heritage property it becomes subject to the rest of the S&Gs, and if it’s not, it doesn’t).  The intention here is clearly to provide a big incentive for provincial owners to evaluate their holdings so as to avoid the onerous consent and other requirements of B.4.

This is nevertheless an example of an approach that provides automatic protection for buildings on an interim basis, where the protection is not time-limited (as in 60 days) but pending the carrying out of a formal evaluation.

Another interesting thing about the B.4. example is who carries out the heritage evaluation.  It is not, as in municipal listing and designation, the municipality, but the owner of the property.  Looked at another way, the onus is on the owner to show why the protection of the property should not continue to apply.  In this respect it is similar to how archaeological sites and Toronto trees are protected.

This suggests a variant on the ACO-inspired approach we looked at above.  How about a model that protects from demolition any 40-year-old building unless and until the owner demonstrates the building has no cultural heritage value?  Or, going still further into what is less a heritage than an environmental strategy — until the owner demonstrates the building has no ongoing utility or that it can’t be adaptively reused, incorporated into or added to in any redevelopment of the site?

I know, heady stuff!

The point is that — from archaeology to Crown property to trees in Toronto — there are precedents and models to draw on should we want to pursue the idea of automatic protection of buildings.  I leave it to you, dear reader, to judge whether this would be good policy.

I am struck though by the parallels between the purpose of Toronto’s tree by-law and ACO’s rationale for “a regulatory bias for conservation”:

The Private Tree By-law was adopted to preserve significant trees on private property in the City of Toronto, to assist in sustaining the urban forest in the City and to educate individuals with respect to tree protection measures and alternatives to tree injury and destruction.
- - - - -

The greenest building is the one that already exists:

• Recognize Ontario’s older buildings as important community assets
• Encourage retention and adaptive reuse
• Discourage demolition and removal to landfill

Note 1: See section 135 of the Municipal Act. The City of Toronto has similar powers under section 104 of the City of Toronto Act, 2006.

Note 2: The city’s by-law is formally known as City of Toronto Municipal Code, Chapter 813, Article III, "Private Tree Protection."

Note 3: "Ontario's Culture Strategy: What's Next?", Architectural Conservancy Ontario, February 18, 2016.

Note 4: See OHA+M: “Listing — Designation Lite?” from March 3, 2016.

Digging down on automatic protection

Let’s get back to the concept of automatic protection for cultural heritage resources — the idea that they get “instant” protection without going through some form of decision process.

I say “back” because perceptive readers may have noticed that the three shipwrecks we looked at last time are not automatically protected.  Or rather, they get the same automatic protection in Ontario as archaeological sites on land, but the added protection they enjoy — the no-access zone surrounding them — is not automatic.  Far from it!  As we saw it takes a regulation passed by the Lieutenant Governor in Council (aka Cabinet) to confer this special status.

So… automatic protection and why an AP approach is used for archaeological resources.  Here again is the rationale:

Clearly archaeological sites are in the ground, or under water, and are usually obscured or hidden in a way that built heritage resources and cultural 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 an expert assessment. And it is possible sites may contain human remains. [Note 1]

We’ll return to this.  For now let’s look more closely at the implications of AP for archaeology.

In the (usual) context of land use planning and development, archaeological activity — “archaeological fieldwork” [Note 2] — follows a process, with up to four stages.

The purpose of the first three stages of the process is:

• to identify archaeological sites that may be present
• if they are, to assess the degree of cultural heritage value or interest of the sites
• informed by that assessment, to determine whether mitigation of the development project’s impacts on a site will be necessary; and if so, to recommend the most appropriate mitigation strategies (this requires review of potential strategies with the project proponent and may also require engaging indigenous and local communities)

In the fourth stage, the recommended mitigation strategies are carried out.  Mitigation could take the form of avoidance of the site and implementing long-term strategies for its protection, such as an easement or restrictive covenant, zoning by-law amendment or transfer of ownership to the municipality or other public body. [Note 3]  But if long-term protection is not a viable option — and it usually isn’t in these situations — then archaeological excavation is conducted to document the site and remove its artifacts before construction on the development project begins. [Note 4]

The point here is that automatic protection of archaeological sites in Ontario, in the context of our land-use planning regime, ensures a graduated or sequential process.  One that looks for, assesses, examines options for and extracts information from sites, but is not normally relied on to protect them in the long-term — because the site turns out to be not that significant or because leaving it alone is not a practical option or because through excavation the site is essentially destroyed.  In that event “clearance” will be given and the legal protection of the site lifted.

Okay, now let’s review what we know about how this approach compares with the other main protection mechanism we use — heritage designation under the OHA.

The big difference between AP and designation approaches has to do with how the heritage resource is typically selected:

Automatic protection (section 48 of OHA)	Conferred if resource meets definition/has certain characteristics, i.e. contains artifacts or other evidence of past human activity
Designation (section 29 of OHA)	Conferred if resource meets definition/has certain characteristics, i.e. real property + resource meets criteria for value/significance + resource is earmarked by a public authority (municipal council or provincial minister) following statutory procedure

The other difference has to do with the kind of protection conferred:

Automatic protection (section 48 of OHA)	Protection effectively provisional and dependent on process outcomes
Designation (section 29 of OHA)	Protection permanent/indefinite

Where am I going with this?  It may take another post or two to get there.  But it has something to do with trees in Toronto.

Note 1: See OHA+M “Automatic protection — the holy grail?” from March 17, 2016.

Note 2: As defined in O.Reg. 170/04 “archaeological fieldwork” means any activity carried out on, above or under land or water for the purpose of obtaining and documenting data, recovering artifacts and remains or altering an archaeological site and includes monitoring, assessing, exploring, surveying, recovering and excavating.

Note 3: In theory designation of the site under Part VI of the Act (or even under Parts IV or V) is also a protection option. The drafters of the 1975 OHA seemed to think provincial designation was the way to protect archaeological sites, devoting no less than 10 sections of the Act to this approach, including one requiring compensation for owners affected. For this and other reasons the designation power in Part VI has never been used. The only archaeological sites designated under the Act are five sites originally designated under the Archaeological and Historic Sites Protection Act, a predecessor of the OHA.

Note 4: For a fuller description of the four-stage process see the Ministry of Tourism, Culture and Sport’s Standards and Guidelines for Consultant Archaeologists, pages 4-5, and the diagram on page 9 (also reproduced below):

http://www.mtc.gov.on.ca/en/publications/SG_2010.pdf

Automatic protection in the deep

Still with archaeology and how it is protected in Ontario, what about our marine heritage?

Let’s just dive in.  But try not to get in over our heads.  (Sorry, something about this topic makes puns tempting.  And here I’m with Oscar Wilde: the best way to get rid of temptation is to yield to it!)

Subsection 48 (1) of the OHA says:

… 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.

3. With respect to a marine heritage site that is precribed by regulation,

i. Dive within 500 metres of the site or within any other distance of the site as may be prescribed by regulation.

ii. Operate within 500 metres of the site or within any other distance of the site as may be prescribed by regulation any type of submersible vehicle, including a remotely operated vehicle, autonomous underwater vehicle or submarine.

iii. Operate within 500 metres of the site or within any other distance of the site as may be prescribed by regulation any type of equipment, machine, device or thing capable of being used to conduct a survey, whether towed or not, including a side scan sonar or a camera. (bolding added)

Paragraph 3 was added in the sweeping changes to the Act in 2005.  What does it mean and why is it necessary?

Under paragraph 2 shipwrecks and other marine sites enjoy the same automatic protection as other, land-based archaeological sites. But paragraph 3 gives some sites — specific ones listed by regulation — an even greater degree of legal defence.

For these special sites, think of a huge column or tube centred on the site on the lake or river bed.  The tube is 1000 metres wide and extends from the bottom to the water's surface.  Within the tube you can’t dive or operate any kind of submersible vehicle; you also can’t use any kind of device capable of surveying or mapping the site — from below or on the water’s surface.

Getting to the bottom of things, the reason for this no-go, no-survey zone is that the basic prohibition against alteration or removing artifacts doesn’t go far enough.  Some marine archaeological sites are so fragile or sensitive that you just don’t want anybody or anything getting close — they can be disturbed even by divers or underwater vehicles moving near them, or they contain human remains and are effectively a burial place.

Of course, the particular activities are not forbidden hook line and sinker; but you will need a special licence to do them.

So what are these exclusive places?  Ten years ago, in 2006, the province approved a regulation listing three shipwreck sites: two War of 1812 American warships, the Hamilton and the Scourge, on the bottom of Lake Ontario east of Hamilton; and the American lake freighter Edmund Fitzgerald, in Lake Superior west of Sault Ste. Marie. [Note 1]

USS Scourge, originally the Canadian schooner Lord Nelson

Remember that the 500 metre radius is the default; the Act says that the protection zone may instead be “within any other distance of the site as may be prescribed by regulation.”  The 2006 regulation prescribes a larger 750 metre radius for the Hamilton and Scourge.

Sidescan sonar of the Hamilton on the lakebed   Courtesy City of Hamilton

By the bye, you may wonder about the Eddie Fitz.  Two hundred-year-old warships are one thing, but a rusty iron ore carrier that sank in 1975?  As with the Hamilton and Scourge, the Edmund Fitzgerald is also a final resting place for the seamen (29 in all) who perished with her.  But the cultural heritage significance of the site is largely owing to the iconic Gordon Lightfoot song, “The Wreck of the Edmund Fitzgerald”, released 40 years ago this summer.  Like the Toronto tree that gave rise to “The Maple Leaf Forever”, it’s a great example of the unexceptional acquiring heritage value through the art it inspires. (Okay, “art” may be a stretch for TMLF.)

A drawing of the relative positions of the wreck parts

Getting back on course, there is a bit of a ripple in the “dome” protecting the Edmund Fitzgerald.  Actually more than a ripple — a whole chunk of the dome is lopped off.  It so happens that the Eddie Fitz wreck lies very close to the international boundary running through Lake Superior — in fact, the U.S. border is less than 500 metres away.  So as not to infringe on the sovereign territory of our neighbour, the regulation says: “If an area that falls within [the 500 metre] radius … is outside Ontario, paragraph 3 of subsection 48 (1) of the Act does not apply to that area.”

Of course the OHA would not have application in the United States or anywhere beyond Ontario’s borders, but it’s a nice diplomatic touch to have the regulation acknowledge that.  You could say it deftly synchs the Eddie Fitz (with)in the jurisdictions concerned (sorry, going overboard!).

Why do only three sites get this favoured treatment?

Understandably the large recreational diving community was less than enthusiastic about the prospect of new, quite restrictive limitations on access to shipwrecks and other marine heritage sites.  There were also concerns that publicizing the location of lesser-known marine resources might attract the wrong kind of attention, doing more harm than good.  These few famous “watery grave” sites seemed a good place to start.

The figurehead on the bow of the Hamilton  Courtesy City of Hamilton

But after a decade of experience the provincial culture ministry should be reviewing the situation.  And deciding that a much longer list of important sites deserves this premium form of protection too.

Note 1: See Ontario Regulation 11/06 under the OHA. For obvious reasons the regulation pinpoints the location of the sites. For example, the Hamilton and Scourge site "is comprised of the water and land under water in Lake Ontario at the point of intersection of the meridian of longitude 79°18.57' west with the parallel of latitude 43°18.43' north." This means that for legal purposes the sites are effectively vertical "lines" rather than "points", extending from the lake bed to the lake surface.