Wednesday, May 17, 2017

Wish list changes to the OHA, part one ... or, bands in the OHA

It’s been over ten years now since the last major amendments to the Ontario Heritage Act in 2005-06.

I am sometimes asked what new changes should be made to the Act.  Well, there are a few...

Let’s start with an easy one.

The OHA should be amended to remove the reference to “[Indian] bands” in the definition of municipality.  This reference is outdated and unnecessary — not to mention culturally insensitive, or worse.

Specifically, section 2 of the OHA defines “municipality” as follows:

“municipality” means a local municipality and includes a band under the Indian Act (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act

Why does the Act do this?

Since the best-known provisions of the Act give municipalities — defined in the wording above as local municipalities — the power to designate heritage property, it is tempting to think that the intention was also to give “Indian bands” the ability to designate property on reserves.

But this is puzzling.  Bands are located on federal Crown land, where the OHA has no jurisdiction.  What’s more, while band councils under the Indian Act are given limited powers to control land use and regulate the construction, repair and use of buildings, the inhabitants of reserves are not the owners of the underlying real property (land), so it is difficult to see how the designation provisions and process could be applied.

I think we can safely say that Indian bands were not included in the definition of municipality for the purposes of heritage protection.  What then?

The clue is in the reference to section 69 of the Indian Act.  That section deals with financial management rather than land management. [1]

The ability to manage its finances would be basic for a band’s eligibility for grants.

Let's look at another OHA definition — the one for “person”: “person includes a municipality”. So, because a municipality includes a band, “person” would also include a band.

Bands would therefore benefit from the powers of the Ontario Heritage Trust to enter into agreements and provide financial support to “persons.”  The Trust can, among other things:

(g) enter into agreements with persons respecting any matter within the objects of the Trust, and provide financial assistance by way of grant or loan to persons who are parties to such agreements for the purpose of,
(i) providing educational, research and communications programs,
(ii) maintaining, restoring and renovating property, and
(iii) providing for the management, custody and security of property (emphasis added) [2]

So if this — grant eligibility — is the rationale behind defining municipalities to include bands, how can it be framed in, well, a more politically correct way?

While the phrase was unknown to the drafters of the 1975 legislation, a contemporary means of bringing bands into provincial legislation employs the term “First Nation.”  “First Nation” can then be included as appropriate in a wider definition of “public body” that encompasses other provincial and municipal agencies (leaving the word “person” undefined).  The Planning Act for example takes this approach.

The OHA definitions should be revised by taking “band” out of the definition of municipality and introducing the term “First Nation”, which would be defined as a band. [3]  With a few adjustments elsewhere, the definition of “person” could probably be dropped.

This is a simple housekeeping change that is long overdue.

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Any pet peeves with the OHA?  Something big you've always wanted changed or a small flaw you've just noticed?  Let me know!  Post a comment below or email danschneider@live.ca.


Note 1: Subsection 69 (1) of the Indian Act says:

69. (1) The Governor in Council may by order permit a band to control, manage and expend in whole or in part its revenue moneys and may amend or revoke any such order.

Note 2: See section 10 of the OHA. As ”persons”, bands potentially could also be assigned easement agreements taken by the Ontario Heritage Trust under sections 22 and 37.

Then there’s Part VI of the Act. Another conceivable, if unlikely, reason for including bands as “persons” is to bring them within the ambit of the province’s archaeological licensing regime. Subsection 48 (1) says: “… no person shall do any of the following unless the person applies to the Minister and is issued a licence under this Part…”.

Note 3: No doubt the good folks at the Ministry of Indigenous Relations and Reconciliation can advise how best to do this.