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.

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).

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

Sturgeon Point in winter

The depths of February may make us yearn for summer.  So let’s celebrate Heritage Week with an escape from the day-to-day — and the serious policy talk — to an historic summer resort in winter, its beauty tinged with the wistfulness of the snowy off season.

Sturgeon Point is a little known, perfectly wonderful spot — one of my favourites. 

Situated at the elbow of the Y-shaped Sturgeon Lake in the heart of Ontario’s Kawartha Lakes, Sturgeon Point is an old resort community that became popular with Canadians and Americans alike in the last quarter of the nineteenth century.  It was incorporated as a village in 1899 and for years was the smallest Ontario municipality with its own council. After a century it was swallowed by the amalgamated City of the Kawartha Lakes in 2000.  [Note 1]

Let’s see — how shall we get there?  Today by car from the north, but in the Point's heyday we’d have come by steamship from the south.  And taking the Lintonia or Esturion from Lindsay was often just the last leg of a longer journey, involving a train to Lindsay from Toronto or Port Hope and maybe, before that, a longer steamship ride across Lake Ontario from Rochester.

"Str." is short for steamer.  Image courtesy the Sturgeon Point History Project

We’d have landed at the Upper Wharf...

Photo courtesy the Sturgeon Point History Project

where today we find a charming structure, the Rain Shelter, looking like a diminutive railway station...

Upper Wharf Rain Shelter, a designated property, in 2016

and made our way on foot or by carriage to our (lucky) friends' summer homes in the village.  Sited among towering pines, oaks and maples, these came in all sizes, but the ones on Lake Avenue along the lakefront tended toward the big!

A grand Lake Avenue cottage of the Edwardian era

An even grander one

A Victorian era cottage, with renovations to the verandah

A more modest Edwardian cottage

On the water side of Lake Avenue are splendid lake views...

and steep stairways down the bluff to the water's edge...

not to mention some great old boathouses.

Winter has its advantages when photographing boathouses

The smaller lots on the streets running back from Lake Avenue have humbler cottages, including this little gem.

On my walk around the village I'd have liked a companion knowledgeable about Ontario resort architecture (like my friend Liz Lundell, author of Old Muskoka: Century Cottages and Summer Estates). I'd have asked about similarities in these three cottages.

The soul of the village, no pun intended, is the marvellous octagonal church. To replace an early building destroyed by fire, one of the more prominent Sturgeon Pointers — no less than Lady Clara Flavelle — donated the church to the village in 1915.

The century-old Union Church, also a designated property

The church interior, with its single central pillar

Typical side street, Sturgeon Point

A narrower (unplowed) stretch of Lake Avenue, with old streetlight

With relatively few unsympathetic intrusions, Sturgeon Point survives as a rare and marvellous cultural heritage landscape.  Let's come back in summer!

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Heritage Week marks the first anniversary of OHA+M.  Thirty posts and counting!  Thanks for your support.


Note 1: Sturgeon Point did something interesting at the time of amalgamation.

The County of Victoria and all of the local municipalities in the county were combined in the new City of Kawartha Lakes (CKL) on July 1, 2001. On amalgamation, all municipal property of the old Village of Sturgeon Point became the municipal property of CKL, and CKL became responsible for all municipal government services.

But prior to amalgamation the Village council decided that certain Village lands that were unessential for amalgamation (beach, playground, upper wharf, leaf dump, etc.) should be transferred to a trust to be held for the benefit of the Sturgeon Point community rather than merge into CKL. In anticipation of this move, the Sturgeon Point Association (SPA) was created in December 2000. The SPA promotes the interests of the permanent and seasonal residents of the former Village of Sturgeon Point within CKL. It also administers and operates the trust-owned lands.

According to its articles of incorporation one of the Association’s primary functions is “to ensure that the historical character of Sturgeon Point, as defined by its original municipal boundaries, is maintained and enhanced to preserve the unique ambience and atmosphere that gives Sturgeon Point its special appeal.”