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.”

Adjacency and the OMB: New decision says the new must respect the old

2015 ended with an important OMB decision on the question of adjacency — the impact of proposed development on adjacent heritage property.

But first, some background.  Ten years previous, a new cultural heritage policy was introduced in the 2005 Provincial Policy Statement.  Policy 2.6.3, known as the “adjacent lands policy”, now reads:

Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved. [Note 1]

While new provincial policy measures are clearly a response to emerging problems or issues occurring in many places, as we have seen previously there is often a particular situation or controversy that comes to epitomize the issue and plays an outsized role in convincing decision-makers to act.

Was there one such controversy behind policy 2.6.3?  I’m not sure. [Note 2] But there was a high-profile situation that certainly contributed to the wake-up call: the threat posed by new construction near the iconic Sharon Temple.

The Sharon Temple, completed in 1832, once stood in splendid rural isolation on the edge of the sleepy village of Sharon, some 60 km north of Toronto.  But by the late 1990s serious ex-urban development was already beginning to engulf Sharon and its famous national historic site.  As with so many heritage sites the Temple and its grounds were considered at risk, not by what was happening at the site itself, but by what was going on — or might go on — next door.

Concern about “adjacency” can be seen as part of growing attention in the heritage movement to the context and surroundings of historic structures. [Note 3] But when this concern came to be reflected in legislation and policy directives some precision was obviously required.  For the purpose of policy 2.6.3 the PPS defines “adjacent lands” as “those lands contiguous to a protected heritage property or as otherwise defined in the municipal official plan.” [Note 4] Contiguous is understood to mean touching at the edge, at a point, or along a boundary.

With the prompting of the PPS, municipal Official Plans since 2005 routinely incorporate corresponding adjacency policies. For example, Toronto’s revised OP heritage policies approved in 2015 include the following:

New construction on, or adjacent to, a property on the Heritage Register will be designed to protect the cultural heritage values, attributes and character of that property and to minimize visual and physical impact on it, including considerations such as scale, massing, materials, height, building orientation and location relative to the heritage property. [Note 5]

This particular policy played a pivotal role in the OMB decision of late last year: CHC MPAR Church Holdings Inc. v. Toronto (City). [Note 6]

The designated buildings at Church and Granby Streets in 2010

The buildings today

A developer wanted to erect a 32-storey apartment tower on a relatively small corner site, currently a parking lot, on Church Street in downtown Toronto.  Immediately to the north on Church stands the three-storey Stephen Murphy Houses and Store, a property designated under Part IV of the OHA. [Note 7] To the west of the site along a side street (McGill) is a two-storey house, listed but not designated, and a similarly scaled residential neighbourhood.

The city refused to rezone the site to permit the project and the developer appealed to the OMB.  To the surprise of many, including the neighbourhood group supporting the city’s position, the Board dismissed the appeal, nixing the development.

The “determinative issue” in the case, the Board said, was “conservation of the heritage attributes.”  It concluded that the principal question to be decided was “whether the proposed development conserves the adjacent heritage structures and respects their scale, character and form.”

East elevation with designated buildings on right

South elevation with listed building on left

Adjacency is clearly tricky.  According to the PPS, the test is whether “it has been demonstrated that the heritage attributes of the protected heritage property will be conserved” by the proposed development.  But of course in an adjacency scenario the heritage attributes of a designated structure, if understood as the physical elements of the structure that can’t be altered without municipal consent, are not being altered or changed in any way.

And yet it is easy to imagine the extreme case where a heritage building is completely surrounded by new development and is effectively “lost” — like the hole in a bagel when viewed from the side!

This suggests the crux of adjacency is the view or visual context of the heritage structure.  Note in this regard that the definition of “heritage attributes” in the 2014 PPS is more expansive than in 2005, and includes not just “the property’s built or manufactured elements” but also “its visual setting (including significant views or vistas to or from a protected heritage property).”

In the case here the developer had undertaken the required heritage impact assessment (HIA).  Citing the four-storey podium at the base of the tower and its scale, massing and architectural treatment, the HIA found “that there is limited impact on the adjacent heritage resources and that their heritage attributes are conserved.”  But the Board didn’t buy it for a minute.  

On the contrary, the Board was persuaded that “the development as designed fails to achieve the relevant heritage policies”, starting with policy 2.6.3 and the city’s OP policies including the one quoted above.

Not mincing words, the Board found that the proposed building

…functions in isolation of its surroundings without appropriate regard for its immediate context, especially for the immediate heritage context; and it overwhelms and subordinates the physical attributes of these much smaller buildings with little or no regard for the cultural heritage therein.

The Board describes the tower ”looming over” the designated property “with a 0-metre setback”; it finds the development “will only serve to degrade the massing and visual experience of the heritage structures”; and that such a tall building “diminishes the heritage qualities to the detriment of the heritage buildings’ continued functioning as a visible and distinguished built form remnant of the City’s cultural heritage.”

And so on, and on, for 43 pages!  It's (almost) enough to make you feel sorry for the developer and its rebuffed heritage experts.  And it comes as something of an anti-climax when the Board opines that “this development does not represent good planning” and that “this or any other tall building is likely unable to work on the subject property so long as it is designed in insolation from the proximate heritage structures.” (And the only way around this, the Board implies, is for the developer to pursue assembly of its site with the adjacent designated site.)

Interestingly, not a single other OMB case is referenced in the decision.  This is unusual and seems to confirm that this is the first case the Board has dealt with where adjacency was the main focus.  So it is likely an important precedent, in addition to providing yet more evidence of an increasing OMB comfort with, and sensitivity to, cultural heritage arguments.

The main takeaway from this case?  in adjacency situations “heritage attributes” of heritage properties are to be interpreted broadly and not necessarily limited to those listed in a designation by-law.  The visual relationship between the old and new is key — where the new would visually overwhelm, diminish or degrade the old, these adverse impacts on the heritage attributes will doom the project.

Note 1: The wording was slightly amended in the 2014 PPS.

Note 2: Perhaps my former culture ministry colleagues who worked on the 2005 PPS have the answer... hello?

Note 3: See for example ICOMOS’s 2005 Xi’an Declaration On The Conservation Of The Setting Of Heritage Structures, Sites And Areas: http://www.icomos.org/charters/xian-declaration.pdf

Note 4: For its part “protected heritage property” is defined as "property designated under Parts IV, V or VI of the Ontario Heritage Act; property subject to a heritage conservation easement under Parts II or IV of the Ontario Heritage Act; property identified by the Province and prescribed public bodies as provincial heritage property under the Standards and Guidelines for Conservation of Provincial Heritage Properties; property protected under federal legislation, and UNESCO World Heritage Sites."

Note 5: Number 25 of 53 heritage policies.  Back in Sharon, in 2009 the Town of East Gwillimbury approved the following OP amendment relating to development adjacent to the Sharon Temple:

5.7.3 (xv) All development and associated municipal infrastructure and public works adjacent the Sharon Temple must be respectful of this significant built heritage resource and its associated cultural heritage landscape. The height, scale, massing, setbacks, sound and artificial light buffering, building materials and design features of new development shall be determined with regard to minimizing their impact on Sharon Temple. It shall be demonstrated through the preparation of a Heritage Impact Assessment that the heritage attributes of the Sharon Temple will be conserved. Mitigative measures identified in the Heritage Impact Assessment may be required as a condition of approval of development and site alteration applications.

Note 6: OMB case PL141140, December 23, 2015;
http://www.omb.gov.on.ca/e%2Ddecisions/pl141140%2Ddec%2D23%2D2015.pdf

Note 7: The property was designated by by-law in 2010. The Statement of Cultural Heritage Value or Interest reads:

The cultural heritage value of the Stephen Murphy Houses and Store is related to their Second Empire design, popularized in the late 19th century and identified by the mansard roof. The cultural heritage value of the properties is also linked to their contribution to the evolution of the Church Street neighbourhood as the centre of gay culture in Toronto. Beginning in the early 1990s, the buildings were occupied by the Barn and Stables, a popular gay nightclub. The context of the properties contributes to their cultural heritage value. The Stephen Murphy Houses and Store are prominent local features and visible corner buildings that, in appearance and scale, relate to the adjoining residential neighbourhood along Granby Street and McGill Street.

The list of heritage attributes does not include mention of views. The south wall with the mural (up against which the proposed tower would have been built) and the west wall are specifically excluded. 

"Cultural heritage" and the fuss with definitions

I feel like this should come with an advisory: 

***The following post is intended for mature, if geeky and/or masochistic, audiences.  May contain passages that are pedantic, exasperating, or numbingly dull.  Reader discretion is advised.***

Don’t say you weren’t warned!

Today we delve into definitions, their fortes and foibles, with the spotlight on “cultural heritage.”

As we saw last time, in 2006 Ontario put in place two regulations under the Ontario Heritage Act: O. Reg. 9/06, “Criteria For Determining Cultural Heritage Value Or Interest”, and O. Reg. 10/06, “Criteria for Determining Cultural Heritage Value Or Interest Of Provincial Significance.”

These criteria were designed for the purpose of designation under Part IV of the OHA: to be designated a property must meet the criteria.  But the use and influence of the criteria has become far greater.  Once you have a legislated test for “cultural heritage value or interest” (CHVI) for one purpose (individual designation), it is hard to argue that the same words used elsewhere should not be interpreted the same way.

So even to be listed — included on the municipal register but not designated — a property effectively must meet the criteria. [Note 1]  Similarly with heritage conservation districts under Part V.  The requirement that an HCD have a plan, and that the plan include “a statement explaining the cultural heritage value or interest” of the district, essentially means the HCD must have CHVI as per the criteria. [Note 2]

The CHVI criteria are even operative beyond the mechanisms of the OHA.  They get picked up in the latest (2014) version of the Provincial Policy Statement under the Planning Act.  The cultural heritage policies in the PPS focus on conservation of “significant” resources — built heritage, cultural heritage landscapes, archaeological — and it’s the CHVI terminology and criteria that are invoked in the definition of “significant”: 

…(e) in regard to cultural heritage and archaeology, resources that have been determined to have cultural heritage value or interest for the important contribution they make to our understanding of the history of a place, an event, or a people.

Criteria for determining significance for the resources identified in sections (c)-(e) are recommended by the Province, but municipal approaches that achieve or exceed the same objective may also be used. (underlining added)  [Note 3]

All this to show that the criteria in the 2006 regulations now essentially define cultural heritage value or interest for purposes of our heritage protection and land use planning regimes.  Put another way, they define what is heritage (and what is provincially significant heritage) and what is not.  To talk of heritage resources that do not meet the criteria in O. Reg. 9/06 has become a contradiction in terms.

Defining cultural heritage in this way has helped solve a long-time problem.  From its inception in 1975 there was no definition of heritage in the opening section of the OHA.  There is only a minimal definition of “property” at the beginning of each of the major parts of the Act telling you whether property means both real and personal property (Part II), or only real property, and whether real property includes buildings and structures (Parts IV and V) or not (Part VI).

In the original OHA, designation of property under Part IV was based on “architectural or historical value or interest” — period.  Over the years there were constant calls for a better definition of what could be designated, and the culture ministry struggled with how to respond.

Drafts of proposed OHA changes from the 1990s included definitions of real/immovable and personal/movable property (and in one case even intangibles!).  These were definitions of the extensional kind — attempting to list every kind of property that the Act covered; so, for example… buildings, bridges, battlegrounds, cemeteries and other burial sites, gardens, parks, ruins, archaeological sites, landscapes, streetscapes, trees and other natural features (at least those with a cultural component), memorials, engineering works, etc., etc.  And, of course, because of the risk of leaving something out the definitions all began with “including but not limited to.”

As one who was part of it I can tell you frankly it was a maddening exercise — especially as there was no legal need for such a cumbersome laundry list in legislation.  The motivation was really advisory or even advocacy, to try to ensure municipalities knew to protect heritage property in all its forms.

In 2002 there were finally some significant amendments made to the OHA.  One of these introduced the by-then accepted term “cultural heritage” in place of “architectural or historical” in describing the kind of “value or interest” of designated property.  Another change gave Cabinet the power to make regulations “defining ‘archaeological fieldwork’, ‘archaeological site’, ‘artifact’, ‘cultural heritage’ and ‘marine archaeological site’ for the purposes of this Act and the regulations.”

Anything jump out at you there?  Rather than define “cultural heritage” in the Act itself, it seemed a better idea to define it in regulation — where it could be more easily changed as needed.  But this was just a vestige of the old list-it-all thinking.  The best idea was not to define it at all; while the archaeology definitions were soon put in place, a definition of “cultural heritage” was never developed.

The difficulty was the preoccupation with an “extensional”/list kind of definition when what was needed was an “intensional” definition — one that tries to capture the essence of a term.  What is the essence of heritage?  Answer: things from the past that have value to a community.  What kind of value? (Now we’re getting somewhere.)

What Ontario finally got, with the 2005 OHA changes and the 2006 regulations, was a legislative description of cultural heritage value or interest.  This amounts to a functional definition — of the intensional kind — of cultural heritage, at least in terms of real/immovable property.

Not that we don’t need good definitions of the other kind.  But extensional/list definitions are usually best put in policy or advisory documents where longer and looser definitions are appropriate.  And where they can be routinely reviewed and updated.

Documents like the Provincial Policy Statement and the Ontario Heritage Tool Kit! [Note 4]

Note 1: Sub-section 27 (1.2) says the municipal heritage register “may include property that has not been designated … but that the council of the municipality believes to be of cultural heritage value or interest…”

Note 2:  Clause 41.1 (5)(b).  Again, in the case of government property: although sites owned by the province cannot be designated under Parts IV and V, they are subject to Part III.1, which provides for the creation of standards and guidelines for the conservation of properties “that have cultural heritage value or interest.”  The Standards & Guidelines for the Conservation of Provincial Heritage Properties approved in 2010 rely completely on the CHVI criteria in the regulations for determining whether a property is “heritage” and its level of significance.

Note 3: PPS definitions section, p. 49.  As the PPS has evolved, there is not now (if there ever was) any coherent difference between, say, "built heritage resources" and "significant built heritage resources." (I just assume the Ministry of Tourism, Culture and Sport is well aware of this, and the Ministry of Municipal Affairs and Housing isn't.)

Note 4: Consider the PPS definition of “cultural heritage landscape”, which combines both intensional and extensional definitions:

Cultural heritage landscape: means a defined geographical area that may have been modified by human activity and is identified as having cultural heritage value or interest by a community, including an Aboriginal community. The area may involve features such as structures, spaces, archaeological sites or natural elements that are valued together for their interrelationship, meaning or association. Examples may include, but are not limited to, heritage conservation districts designated under the Ontario Heritage Act; villages, parks, gardens, battlefields, mainstreets and neighbourhoods, cemeteries, trailways, viewsheds, natural areas and industrial complexes of heritage significance; and areas recognized by federal or international designation authorities (e.g. a National Historic Site or District designation, or a UNESCO World Heritage Site).