Things to consider: Cultural heritage refers to built heritage resources, cultural heritage landscapes and archaeological resources, which often occur together on a site. The MOECC document Management of Excess Soil – A Guide for Best Management Practices (BMP) encourages municipalities to refer to outside tools that may provide additional information and policy on cultural heritage and archaeological sites including: “The Provincial Policy Statement and Provincial Plans, such as the Oak Ridges Moraine Conservation Plan, Niagara Escarpment Plan, Greenbelt Plan and Source Water Protection Plans”1. The BMP also recommends retaining a qualified person to assess the conditions of the receiving site, which includes identifying and protecting cultural heritage resources. The Ontario Heritage Act requires additional review and approval for alteration of properties of cultural heritage value or interest and is an informative resource for municipalities developing site alteration and fill by-laws, as well as site owners/operators wishing to alter a property.

Resources:
The Ontario Heritage Act provides municipalities the authority to preserve cultural heritage areas within their district through specific requirements and prohibitions.

Under the Ontario Heritage Act, The Standards and Guidelines for Conservation of Provincial Heritage Properties were issued. These guidelines outline how to identify and evaluate the cultural heritage value of properties according to the Ministry of Tourism, Culture & Sport (MTCS).

DEFINITIONS

Things to consider:
Archeology

The definitions below for archaeological sites, areas of archaeological potential, built heritage and cultural heritage landscapes are taken from the Ministry of Tourism, Culture & Sport (MTCS). Including these definitions in site alteration and fill by-laws highlights types of areas that may be impacted by site alterations and require additional planning.

Archaeological sites: 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 (Ontario Heritage Act Regulation 170/04).

Areas of archaeological potential are areas of a property which may contain archaeological resources. The ministry has established criteria and a checklist for determining areas of archaeological potential. Some municipalities have also chosen to prepare archaeological management plans in which areas of archaeological potential within that municipality are identified and mapped.”2

Built heritage means one or more significant buildings (including fixtures or equipment located in or forming part of a building), structures, monuments, installations, or remains associated with architectural, cultural, social, political, economic, or military history and identified as being important to a community. For the purposes of these Standards and Guidelines, ‘structures’ does not include roadways in the provincial highway network and in-use electrical or telecommunications transmission towers.

Cultural heritage landscape means a defined geographical area of heritage significance that human activity has modified and that a community values. Such an area involves a grouping(s) of individual heritage features, such as structures, spaces, archaeological sites, and natural elements, which together form a significant type of heritage form distinct from that of its constituent elements or parts.” 3

Qualified Person
The Ministry of Tourism, Culture & Sport (MTCS) also defines a qualified person for the purposes of cultural heritage resources, including relative assessments that may need to be completed:

“Qualified Person means an individual – a professional engineer, architect, archaeologist, etc. – having relevant, recent experience in the identification and conservation of cultural heritage resources.” 4

See the Definitions Page for additional terms relevant to any site alteration or fill by-law.

GENERAL PROHIBITIONS & REGULATIONS

Things to consider: Any site shown to have cultural heritage value or interest must comply with the Ontario Heritage Act (OHA). The OHA forbids the alteration of cultural heritage resources without appropriate approval, where “alter” means to change in any manner and includes to restore, renovate, repair or disturb and “alteration” has a corresponding meaning.5
In accordance with the OHA, a site alteration or fill by-law may include the following prohibitions:

“5.8 No person shall permit or cause to be permitted any Site Alteration activities that will result in:
    […]
    5.8.10 An adverse effect to archeological or historically significant features.
[…]
5.9 No permit shall be issued for proposed Site Alteration that will result in:
    […]
    5.9.10 An adverse effect to archeological or historically significant features.”6

PERMIT ISSUANCE

Things to consider: Site alteration and fill by-laws may also specifically require site owners/operators to ensure compliance with the Ontario Heritage Act (OHA) for permit issuance, which includes first determining if a property or project contains cultural heritage resources, such as areas of archaeological potential. The Ministry of Tourism, Culture & Sport (MTCS) has developed checklists of criteria for determining the archaeological and built heritage potential of a site.

Resources
The Ministry of Tourism, Culture & Sport provide two checklists that can be used to determine if a property or project area may contain archaeological resources (i.e. have archaeological potential), is a recognized heritage property and/or may be of cultural heritage. The documents are:
  1. Criteria for Evaluating Archaeological Potential A Checklist for the Non-Specialist
  2. Criteria for Evaluating Potential for Built Heritage Resources and Cultural Heritage Landscapes

Municipalities may also have archeological management plans and/or heritage site inventories which can be referenced in site alteration or fill by-laws as a requirement to be consulted prior to any site alteration operations.

Sample by-law language requiring permit applicants to comply with the OHA is as follows:

A permit shall be issued where the Director is satisfied:
    […]
    (g) that the work proposed under the permit does not involve contravention of […] the Ontario Heritage Act, R. S. 0.c. 0.18 […] and where such acts or by-laws require approval such approval is obtained and proof submitted or will be obtained and submitted before the work under the permit is carried out.”7

Municipalities may also specify the requirement of an archaeological assessment for sites deemed to have archaeological potential, as is done in the example below:

“To obtain a permit pursuant to this By-law, an applicant shall provide the following information: […]
    3.1.7 Confirmation that the appropriate archaeological assessments on Sites deemed to have moderate to high;potentials for the discovery of archaeological resources have been completed to the satisfaction of the Ministry of Culture;”8

Municipalities should consider modifying the above provision to include required assessments for a site with any potential. The Ministry of Culture title should also be updated to the Ministry of Tourism, Culture & Sport (MTCS).

PENALTY

Things to consider: Municipalities may choose to inform site owners/operators that the OHA establishes significant penalties and restoration costs on convictions for offences.