# CHLs at the OMB/LPAT — No to CHL on Stoney Lake

Stoney Lake, Peterborough County

Today we look at a second OMB decision on cultural heritage landscapes.

In 2017, seven years after the Rockfort Quarry case examined last time, in Burleigh Bay Corporation v. North Kawartha (Township)[1] the Board considered whether a significant CHL existed within the meaning of the Provincial Policy Statement.

The Burleigh Bay Corporation (BBC) wanted to build a condo development of 58 lots on a 273 hectare site with over six kilometres of lakeshore frontage on the north shore of Stoney Lake, north of Peterborough. The municipality refused the Official Plan and zoning by-law amendment applications and BBC appealed.

The Ontario Municipal Board dismissed the appeals on the grounds that the proposed development was not consistent with the natural heritage policies of the PPS and the OP. But in its 139 page decision the Board also addressed cultural heritage issues, and devoted 13 pages to the question whether the BBC property was a significant cultural heritage landscape.

It was the nearby Curve Lake First Nation, which was a party to the case, that urged the Board to find that the BBC lands constituted a significant CHL.

Curve Lake’s council had passed a resolution declaring that the BBC property was a “highly significant cultural heritage landscape” and that it was “located within a broader significant cultural heritage landscape on the north shore of Stoney Lake.” (The resolution also directed staff to work on having the BBC site designated as a property of cultural heritage value or interest under the Ontario Heritage Act.)

Not surprisingly, the Board found that the Curve Lake resolution was not in itself sufficient to result in the Board determining that a CHL existed. Such a determination, the Board said, could only be made following a detailed analytical evaluation process.

It is the Board’s view that in order for a designation of a CHL, or a significant CHL to be conclusively made a methodical and analytical process must be followed, based upon cogent and demonstrative evidence, which satisfies the definition of a CHL within the PPS and which is consistent with the intent and purpose of the policies relating to the conservation of cultural heritage and archaeological resources. A complete assessment and analytical process is required involving qualified experts…. Only then would there be reliable evidence for the decision maker in deciding if a CHL exists[2]

Drawing from the PPS definitions of “cultural heritage landscape” and “significant”, the Board then went to great lengths to spell out what it considered the requisite steps of that analytical process. These include:

• the area under discussion must be “identified as having cultural heritage value or interest by a community, including an Aboriginal community.”
• but, the Board must still be satisfied that the identification of the area by a community “is based upon criteria which reasonably support a decision that [the] area has cultural heritage value or interest for that community”
• as “cultural heritage value or interest” is not defined in the PPS, the Board, in determining whether an area is of cultural heritage value or interest, will look at the use of this phrase in the Ontario Heritage Act — and specifically (a) the criteria in Regulation 9/06 for designation under Part IV of the Act, and (b) the Ontario Heritage Toolkit guide to the designation of heritage conservation districts under Part V of the Act
• the candidate area must be a defined geographical area with boundaries and spatial limits; the area “cannot be arbitrary or determined upon any basis other than the criteria and features provided for in the PPS definition”
• where the boundaries of a CHL are not obvious (as in a battlefield or neighbourhood) “the identification of the cultural heritage features, and the connectivity of those features, as provided for in the [CHL] definition, must first be considered in order to define the geographical area. Although a general area may be initially identified as the expected geographic area of the landscape, only a complete analysis can ultimately provide the basis upon which the final geographical area of the CHL will be determined.”
• the identification of the heritage features that are to form the CHL “should be based upon an identifiable and qualitative common denominator that supports the rationale as to why the individual features are being ‘valued together for their interrelationship, meaning or association’”
• only then can the final boundary of the area be drawn to define the CHL and capture all those properties that are part of the CHL
• the significance test is then used to determine whether a “significant” CHL exists and whether the PPS requirement for conservation applies

Having set its expectations, the Board proceeded to weigh the evidence … and concluded that Curve Lake’s arguments for a CHL came up short.

The main failing, said the Board, was the lack of persuasive evidence defining the precise geographical area of a CHL. Evidence of the importance of the area of the Kawartha Lakes to First Nations, or even of the north shore of Stoney Lake to the Curve Lake First Nation, did not help the Board to conclusively determine the exact area of a CHL.

…[T]his evidence as to Anishinaabeg traditions and culture, does not, in and of itself, provide the Board with sufficient and cogent evidence that these Lands, and this shoreline, and these wetlands, and these plants and herbs, owned by BBC, and any archaeological artifacts or sites located thereon, together constitute a “defined geographical area” which is distinct from any other area in the Kawartha Lakes, or beyond, or any other part of Stony Lake for that matter. The evidence fails to support a conclusion that there are unique and clearly interrelated features that are somehow valued together for their interrelationship or association with one another which are somehow connected to a defined geographical area that is within the confines of the BBC Lands or some other discernible block of lands (or waters).[3]

Having found that the evidence did not support a finding of a significant CHL, the Board did not have to go on to consider the question whether the proposed development satisfied the PPS direction to “conserve” significant CHLs.

Interestingly, though, the Board agreed with BBC’s argument that “extreme care should be taken in labelling a large area as a CHL which could result in the sterilization of the whole of the BBC lands — a result that would have an extreme impact upon the owner of the lands.” (emphasis added) This suggests that the Board took a strict view of the meaning of conservation: one in which little change could be made to the property in question and little use made of it.

This idea of conservation is not in accord with the PPS definition, nor with the Board’s view in the Rockfort Quarry decision.[4] It may be in part attributable to the Board here mixing up the provincial direction on cultural heritage with the direction on natural heritage (which it also had to consider).

The Stoney Lake property was undeveloped and had significant natural heritage attributes. The PPS direction with respect to natural heritage is more of the “do not disturb” kind, while that for cultural heritage is, well, more nuanced and flexible.

Takeaways? The main ones are:

• making a case for a cultural heritage landscape ain’t easy; do your homework (research, analysis, and more analysis) and don’t expect the LPAT to connect the dots;
• as in the Rockfort Quarry case, the Tribunal will want strong evidence of significance; it will consider whether the area meets the criteria for designation under the OHA and/or would qualify for designation as a heritage conservation district;
• a “defined geographical area” is not just about drawing lines on a map; you will need to show how the boundaries make sense — what is the common denominator for what’s inside (the features of the area such as structures, spaces, sites, and natural elements) versus what’s left outside?;
• as a general rule, eschew arguments that the site/area is one part of a bigger cultural heritage landscape; this may be true but won’t get you anywhere.

Next time: Farewell (for now) to CHLs.

Part of the BBC property on the Stoney Lake waterfront

Note 1: The October 6, 2017 decision can be found at http://elto.gov.on.ca/tribunals/lpat/e-decisions/ by entering in case number PL150313. The cultural heritage landscape issue is dealt with on pages 94-107.

Note 2: At page 95.

Note 3: At page 101. The latter alternative — of accepting a broader geographical area of which the BBC lands were part — was not appealing to the Board. “[It] would practically mean that hundreds, if not thousands, of individual homes, cottages, properties and lands within the ancient routeways of the Kawartha Lakes would also be subject to inclusion within that CHL. Surely this expansive approach is not the type of planning tool envisioned in the PPS to conserve significant CHLs within larger planning processes.”

Note 4: “Conserved” in the PPS “means the identification, protection, management and use of built heritage resources, cultural heritage landscapes and archaeological resources in a manner that ensures their cultural heritage value or interest is retained under the Ontario Heritage Act. This may be achieved by the implementation of recommendations set out in a conservation plan, archaeological assessment, and/or heritage impact assessment. Mitigative measures and/or alternative development approaches can be included in these plans and assessments.”