Political control over ancient sites sparks alarm in Ontario

The Ontario regime has quiet presumption itself the force to override archeological protections on development sites.

It's a shift that, for the first time, places millennia-old Indigenous history under direct political control and raises the alarm among experts and First Nations that cultural and burial sites could be erased in the name of economic growth. 

Since 1983, Ontario's archaeological system has depended on professional judgment and arms-length expertise, but recent amendments to the Ontario Heritage Act through Bill 5 have upended that framework in favour of a model where heritage decisions can be made — or unmade — by elected officials behind closed doors.

Section 66.1 of the revised Ontario Heritage Act allows the provincial cabinet to grant sweeping exemptions from mandatory archaeological assessments for projects deemed to advance "specified provincial priorities." This effectively moves the power to protect or destroy historical sites from scientific experts to political decision-makers.

The Ontario government frames the changes as a way to streamline development and advance provincial priorities — like housing, transit and other critical infrastructure — while maintaining some oversight, safeguarding Indigenous access to artifacts and clarifying rules for developers.

First Nations and archaeologists warn the legislative shift could let significant historic sites be erased before they’re even discovered, deepen conflicts between developers and Indigenous communities, and undermine Indigenous rights to their own heritage.

Even where exemptions apply, members "routinely engage qualified heritage and archaeological professionals as part of due diligence and risk management," wrote Kirstin Jensen, OHBA's vice-president of policy, advocacy and relationships.

However, critics say relying on the due diligence of developers isn't sufficient to protect vulnerable sites.

Lisa Sonnenburg, president of the Ontario Archaeological Society, warned that such voluntary measures are poor risk management and said the changes could even slow some developments down.

By skipping archaeological assessments, builders are more likely to hit unexpected discoveries — like ancestral burial grounds — which would trigger mandatory investigations under the Cemeteries Act, said Sonnenburg, who is based in Thunder Bay, Ont.

"Everything has to stop," she said. "I can probably guarantee that you end up having to cancel a project or having to do a major redesign."

Sonnenburg also notes that any such finds require First Nations involvement, adding another layer of complexity that proper assessments are designed to anticipate.

Sonnenburg said if the province genuinely wants to accelerate development and remove project bottlenecks, it should focus on making its own report review process more efficient.

She said the current system allows ministry review to take up to seven years. That, she says, is a more significant cause of major delays than archaeological fieldwork.

The new rules also replace the duty to consult with First Nations on heritage matters, which is constitutionally required, with mere notification.

Indigenous rights lawyer Aaron Detlor calls a "dramatic clawback" that undermines the goals of reconciliation and undermines section 35 of the Canadian Charter of Rights and Freedoms.

"It doesn't matter if there's a village site in that ground, it doesn't matter if there's burials in the ground, it doesn't matter if it's the most sacred site known to any First Nation — it simply doesn't matter any longer, because the priority has been given to developers to proceed unabated on that land."

Detlor argues the exemption may lead to more land disputes, like the 2006 clash over the Douglas Creek Estates subdivision in Caledonia, Ont. An archaeological investigation found 9,000-year-old artifacts and an 800-year-old long house, strengthening the legitimacy of the Six Nations opposition to development in the area.

Critics across the sector fear an irreversible loss of history, increased delays and increased costs for developers who hit burial sites — and the creation of a system susceptible to corruption and political favouritism.

"Anytime you build a system where there is a way of being excused from the rules, then you've created a crack," said Paul Racher, an archaeologist based in Hamilton, Ont.

"It becomes the same issue as they had with the Greenbelt — it's almost impossible to have it that certain developers and proponents aren't favoured and some are."

Racher said, unlike Europeans, who have only lived in North America for 400 years, Indigenous people can trace their legacy on the land through 13,000 years.

"It's crazy that people who've only been here for around 400 years are making decisions about what happens to the heritage of the people who were here for 12,600 years previous to that — it's mind boggling," Racher said.

Legislation requiring archaeological assessments was introduced in 1983 by the government of then-premier Bill Davis.

A paper written by retired archaeologist Ron Williamson estimated that some 8,000 historic sites were destroyed between 1951 and 1991 in the GTA alone.

The legacy of those decisions can still be seen today. Toronto city work crews discovered an Indigenous burial site in a residential lot on Withrow Avenue while working on a water line in January 2024, halting work for years.

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