Bill 23, with its many draconian measures, has been a “bomb” for more than just cultural heritage1. Amid the widespread negative reaction to the bill, the implications of Schedule 6 of the legislation for the protection of heritage sites have drawn scant attention in the media and among the wider public.2
The awfulness of the bill’s changes to the Ontario Heritage Act were pretty clear, however, to the hundreds of people, organizations and municipalities who submitted comments on the bill on the Environmental Registry of Ontario (ERO).
You can now read their submissions here.
Submissions made on the ERO in response to a government proposal are made public when the proposal reaches the “Decision stage.” This is the stage following the adoption or passage of a proposed legislative or policy proposal. As we know, Bill 23 was passed on November 28, 2022. Most of Schedule 6 of the Act, with its amendments to the OHA, was proclaimed and came into force on January 1, 2023. At the same time changes to regulations also came into force, specifically changes to Ontario Regulation 9/06 setting out the criteria for cultural heritage value.
Note by the way that, while the prescribed criteria themselves have not changed (praise be!), Ontario Regulation 9/06 has been completely gutted and replaced with new content by Ontario Regulation 569/22. But since O. Reg. 9/06 has technically been amended and not repealed, it will still be possible to refer to “the 9/06 criteria” and “the 10/06 criteria”, which has become common parlance.
Back to the ERO. At the Decision stage, the government department responsible for receiving and analyzing the public input — here the new Heritage Branch at the Ministry of Citizenship and Multiculturalism (MCM) — posts the results of the ERO consultation. This includes the “Decision summary”, “Decision details”, “Comments received”, and “Effects of Consultation.”
Let’s look at each of these, starting with “Comments received.”
MCM reports that 1,244 comments/submissions came in through the ERO, an additional 28 by email and one by mail. This makes a total of 1,273 submissions during the 45-day comment period, which ran from October 25 to December 9, 2022.
While MCM notes that more than half (762) of the submissions were “off topic” and had comments relevant to other parts of the bill, this still means that a whopping 511 submissions commented on the OHA-related changes. By comparison, this is twice the number of submissions received on Bill 108 in 2019.
(An interesting aside is that only the submissions received through the ERO are viewable.3 The other 29 aren’t. Who are those 29 from and what is in them, one wonders. And what about comments and other communications received directly by the ministry before the comment period?)
Hundreds of (largely) negative comments. Hundreds of them!
Read them, or some of them. I scrolled randomly through them for about an hour. Almost all the ones I saw were critical of the bill’s changes to the OHA — many using strong condemnatory language to convey their opposition to the bill’s changes and its impacts on Ontario’s cultural heritage protection system.
In the scores of submissions I read, a mere three were more-or-less supportive: one from Sifton Properties, a developer; one from the University of Toronto (supportive but concerned about the “unintended consequences” that many of the university’s buildings, now listed, would be subject to designation because of the new two-year designate-or-expire rule); and a third from a municipality that didn’t use listing and preferred designation instead.
Besides the scrolling I also used the ERO’s search function, curious to see submissions from the development industry’s biggest players — specifically BILD (Building Industry and Land Development Association) and the Ontario Home Builders Association (OHBA). Nothing came up for those groups. Strange. Perhaps these submissions were made in a way that wouldn’t be “caught” (see the limitations on viewable comments above).
Or, more cynically but likely closer to the mark, they didn’t need to make submissions on the changes because they had effectively drafted them in the first place.
Turning to the Decision summary:
The Act amends the Ontario Heritage Act (OHA) and its regulations to reduce red tape and remove barriers that are slowing down housing construction and other priority projects while continuing to conserve heritage properties that matter most to local communities.
Aside from the mistake in saying that the Act (Bill 23) amended the OHA regulations (Cabinet does that, not the statute), the summary simply affirms this government’s favourite heritagephobic slur — the misleading and hackneyed premise that conservation of cultural heritage creates “red tape” and “slows down” housing and other priority projects.4
And then there’s the supposedly mollifying clause: “while continuing to conserve heritage properties that matter most to local communities.” This is both patronizing — a key principle of the Ontario Heritage Act is that it is for local communities and municipalities to decide what matters to them and what to conserve — and dismissive, implying that heritage properties that don’t matter “most” are disposable.
On to the Decision details. Mainly this is just a factual list of the amendments, clumped under the headings of “Listing”, “Designation”, “Heritage Conservation Districts (HCDs)” and “Other key changes.” The most interesting thing here is:
Bill 23 also included an authority to set out processes to amend and repeal HCD bylaws in regulation; however, this regulation has not been developed yet. The Ministry of Citizenship and Multiculturalism will consult on the development of these processes in 2023.
This new “authority” — to develop clearer, less-complex procedures for amending and repealing HCD plans and designations — may well be needed. But given the heritage-hostile package of which this provision is part… well, we had better be on our guard when MCM comes knocking. Ontario’s 139 (!) HCDs have been hard-won.
Finally, there’s the “Effects of Consultation.”
This section could also be titled “Effects of Consultation: Nada.” Or, “Why Your 500+ Comments Counted for Interesting Reading and Little Else.”
The section is supposed to be about what people said in their submissions and how the government responded to issues raised. Instead, what we mainly get is self-serving bureaucratic palaver: Bad public policies are cloaked as measures to “streamline requirements”, all while increasing “rigour”, “consistency”, “certainty”, and “predictability.”
Take this example under “Listing.” In response to “concerns about the new timelines for reviewing and making decisions about non-designated properties on the municipal register”, MCM states:
The purpose of these changes is to provide consistency across municipalities, to ensure that timely decisions are made about properties included on the municipal register and to encourage municipalities to prioritize designating properties that have the most heritage value.
Sorry, but this is like me telling you to do something you never had to do — like upgrade your French — and do it by a certain time, and then saying the reason you have to do this is to ensure it be done in a “timely” way. Huh?
You can’t defend the incoherent with more incoherence.5
Here’s another example under “Designation”:
The ministry has amended the presentation of O. Reg. 9/06 to clarify that there are nine criteria for determining cultural heritage value or interest and a property must meet two out of the nine. It is expected that this clarification will help to mitigate the concerns raised regarding the protection of properties that are significant to underrepresented communities.
This is more lipstick on the pig with some self-congratulation thrown in (look what we did for you, such clarity!). No, this “clarification” does not help mitigate the concerns (of this writer at least) regarding the protection of properties of significance to marginalized and underrepresented communities.6
Again, read for yourself some of the hundreds of damning comments. Pathetic that MCM could not at least have acknowledged the unprecedented number of submissions on a heritage-related proposal. And that the vast majority of those commenting did not like the Schedule 6 changes and did not want them to be made.
Notes
Note 1: The bomb graphic comes from a petition circulated last November by Architectural Conservancy Ontario.
Note 2: A case in point is the article “Has Ontario’s housing ‘plan’ been built on a foundation of evidentiary sand?”
Good as it is, the article misses the fallout from Bill 23 for Ontario’s cultural heritage places — for example, in this passage:
The regressivechanges being made under the province’s housing legislation will accelerate urban sprawl and the accompanying losses of prime agricultural and natural heritage lands.
They would undermine efforts to build and protect real affordable housing and liveable communities, respond to a changing climate and ensure democratic governance at the local level.
Note 3: Also note that, for supposed privacy reasons, any comments that had personal information in them, even just the name of the person making the submission, are not published:
We will not publish your comment for others to see if it:
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contains inappropriate or offensive content (language or links)
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is off topic
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contains personal information
I wrote two personal submissions on Bill 23. Both were received and counted but one, which included my name, was not published.
Note 4: There is no cogent evidence that heritage protections stymy legitimate housing projects.This is a bogus argument.
Note 4: See the OHA+M article on the dotty and destructive listing requirements here.
Note 6: See the OHA+M article on the unintelligible criteria threshold here.