Donnelly Law Comments on Provincial Policy Statement, 2005

Re: Provincial Policy Statement Five-Year Review (EBR Registry No. : 010-9766) We write to provide comments with respect to the above-noted Environmental Bill of Rights (EBR) posting.

Introduction

Donnelly Law practices land use planning, environmental and First Nations law; we represent the Huron-Wendat Nation’s cultural interests in the Province of Ontario. This work is centred on how land use planning and development impacts the Huron-Wendat’s culture and heritage, in particular the destruction of Huron-Wendat Nation burial sites and artifacts.

It is our belief that additional preventative measures must be adopted by individuals, developers and municipalities to prevent further destruction of Aboriginal heritage in Ontario. It is, therefore, crucial that the Provincial Policy Statement, the Province’s foundational land use planning instrument, include safeguards to protect Aboriginal interests in Ontario.

Background and Historical Context

Huron-Wendat Nation

The ancestors of the Huron-Wendat Nation occupied a large portion of southern Ontario for many centuries until A.D.1648.  At this time the Huron-Wendat Nation was forced to leave its territory due to many successive deadly epidemics brought by Europeans, as well as disputes and wars with other First Nations. The Huron-Wendat, archaeologists and historians have identified and documented hundreds of Huron-Wendat sites in Ontario. Dozens of large semi-permanent agricultural cosmopolitan villages (occupied by thousands of people) and their attendant burial sites have been discovered, representing a rich cultural heritage legacy.

The Wendake community (Huron-Wendat Nation) is located about 10 kilometres north of downtown Québec City. It is the only Huron-Wendat Nation in Canada. The number of members is 2,994, of which 1,299 reside on the Wendake territory. The Huron-Wendat Nation is concerned about the potential impact of future development on their ossuaries, cemeteries and occupation sites.

Aboriginal Interests Throughout Ontario

The Huron-Wendat Nation, our client, is not the only Aboriginal community affected by Ontario’s rapid development.  All Aboriginal people that ever occupied lands in the Province have a rich legacy that is under constant threat.

Hunter-gatherers occupied most of Ontario since 2,000 B.C. By 1500 B.C.-1000 B.C., elaborate mortuary ceremonial practices developed, suggesting strong social and community identities. Evidence of large burial mounds exists for southern Ontario populations circa 400 B.C.-A.D. 700 and circa 400 B.C.-A.D. 1650 in northwestern Ontario. After 700 A.D., the practice of forming burial mounds ceased and was replaced with ossuaries, which began around 1300 A.D.

Ossuaries, an Iroquoian burial practice, is “a burial pit containing a mixed deposit of the remains of multiple individuals, which was formed as the result of final burial ceremonies, triggered by events, such as village relocation, the death of a leader, or the reformulation of inter-village alliances. The remains that were incorporated within the ossuary had, for the most part originally been interred elsewhere and were exhumed for inclusion in the ossuary feature. Therefore, the majority of the bones in the ossuary are disarticulated.”[1] Ossuaries are not visible above the land, making identification pre-excavation extremely difficult. Coupled with insensitive planning and development, thousands of culturally significant sites have been destroyed.

Destruction of Aboriginal Sites in Ontario

According to the Ipperwash Sacred Artifacts Report:

Rapid development within the Regional Municipalities of Halton, Durham, Peel and York provides an instructive example of the nature and potential magnitude of the threat that continued landscape change may pose to a finite and non-renewable archaeological resource base. It is possible that some 8,000 sites were destroyed in this area between 1951 and 1991, with the majority of this destruction occurring prior to 1971 … It is  further estimated that approximately 25% of these sites (approximately 2,000) represented significant archaeological resources that merited some degree of  archaeological investigation, since they could have contributed meaningfully to our understanding of the past, or outright protection as they constituted culturally significant places for the First Nation descendents of the people who created them in the first place.  (at page 4)

Culturally important lands are not limited to burial sites. The significance attached to a specific location is influenced by a number of factors, determined by the original inhabitants and their descendants. There may be times that these locations require protection, but their identification may be complicated.

Our recommendations are intended to provide practical guidance while simultaneously recognizing the complexity of identifying culturally significant sites to Aboriginal people.  For this reason, consultation and accommodation – foundations of reconciling Canada’s legal regime with Aboriginal rights and interests – must always be at the forefront of all land use planning and development in Ontario. The recommendations we make in this submission are consistent with the recommendations made by the Ipperwash Inquiry.

Recommendations

Conflicts between Ontario’s Aboriginal peoples and land use planning are not new, especially concerning burial grounds. With the 1995 Ipperwash crisis, it would be impossible to deny knowledge that the impact of development has on Aboriginal burial sites. At page 686 of the Ipperwash Inquiry, it is stated that:

The provincial government and other institutions must redouble their efforts to build successful,  peaceful relations with Aboriginal peoples in Ontario so that we can all live together peacefully  and productively.

The Inquiry continued, at page 687:

Usually, the immediate catalyst for most major occupations and protests is a dispute over a land claim, a burial site, resource development, or harvesting, hunting, and fishing rights. The fundamental conflict, however, is about land.

Including a provision to protect Aboriginal heritage in the Provincial Policy Statement is exactly the type of step the Inquiry is speaking to.

The policy recommendations of the Ipperwash Inquiry included a considerable focus on ensuring cultural and heritage claims are protected. Among these recommendations are:

• The provincial government should work with First Nations and Métis organizations to develop policies regarding how the government can meet its duty to consult and accommodate. The duty to consult and accommodate should eventually be incorporated into provincial legislation, regulations, and other relevant government policies as appropriate (Recommendation 14, emphasis added);

• The provincial government should promote respect and understanding of the duty to consult and accommodate within relevant provincial agencies and Ontario municipalities (Recommendation 15);

• The provincial government should work with First Nations and Aboriginal organizations to develop policies that acknowledge the uniqueness of Aboriginal burial and heritage sites, ensure that First Nations are aware of decisions affecting Aboriginal burial and heritage sites, and promote First Nations participation in decision-making. These rules and policies should eventually be incorporated into provincial legislation, regulations, and other government policies as appropriate (Recommendation 22);

• The provincial government, in consultation with First Nations and Aboriginal organizations, should determine the most effective means of advising First Nations and Aboriginal peoples of plans to excavate Aboriginal burial or heritage sites (Recommendation 25);

• The provincial government should encourage municipalities to develop and use archaeological master plans across the province (Recommendation 26)

With the release of the Inquiry only in 2007, these recommendations were not considered in the last Provincial Policy Statement Review. It is essential that the Provincial Policy Statement be revised to include these recommendations and provide the necessary protection of Aboriginal culture and heritage.

In recognition of the importance of protecting aboriginal interests in Ontario, with specific consideration given to the Ipperwash Inquiry, precedent established by the Milroy private prosecution, and dicta of the court in the Hiawatha decision, we recommend ensuring the Provincial Policy Statement recognizes the current state of the law in Ontario, with explicit reference to the connection between Aboriginal rights, the Constitution of Canada, Supreme Court rulings that require protection of cultural heritage, including how its protection pertains to landscapes and land use.  The current PPS does not reflect the important connection between landscapes to Aboriginal culture.

Section 2.0: Wise Use and Management of Resources states:

Ontario's long-term prosperity, environmental health, and social well-being depend on  protecting natural heritage, water, agricultural, mineral and cultural heritage and archaeological resources for their economic, environmental and social benefits.

In order to achieve the above stated goal, two major changes must be made to the Provincial Policy Statement’s section on Wise Use and Management of Resources:

First, Section 2.6 Cultural Heritage and Archaeology must explicitly address Aboriginal  interests, and

Second, a new section on Aboriginal interests must be created.

To ensure Section 2.6 Cultural Heritage and Archaeology explicitly addresses Aboriginal interests, we recommend the following:

1. “Built heritage resources” and “Cultural heritage landscape”: The definitions of “built heritage resources” and “cultural heritage landscape” must include both pre and post-contact sites and should include in the non-exhaustive list of examples of resources (in the case of “built heritage resources) or landscapes (in the case of “cultural heritage landscapes”) those that may be significant to an Aboriginal community.
2. “Archaeological resources”: The definition of “archaeological resources” must include Aboriginal sites or burial grounds.
3. “Aboriginal interest”: A new definition must be included for “Aboriginal interest”, which includes impacts on aboriginal archaeological heritage and landscapes (Milroy and Hiawatha).
4. Aboriginal engagement: Section 2.6.2 must state that in cases where “development and site alteration” impacts a site of Aboriginal origin, before development or alteration can proceed the party is responsible for engaging the Aboriginal community culturally affiliated with the site.

A new section must address the concerns and recommendations made by the Ipperwash Inquiry, recent court decisions and recent land use conflicts with Aboriginal interests. Accordingly, in addition to the modifications to Section 2.6, we recommend the new Provincial Policy Statement include a new section within Section 2.0: Wise Use and Management of Resources. This requires:

A new sub-section (2.7) entitled, “Aboriginal Significant Cultural Heritage and Burial Sites”

This new sub-section shall ensure that

1. Any action that falls within the Provincial Policy Statement shall be required to consult and accommodate Aboriginal communities whenever the action impacts an Aboriginal interest.

Considering the special nature of Aboriginal burial grounds, it is essential that the new Provincial Policy Statement address this issue specifically. Therefore, this new sub-section must also ensure the following:

2. When an Aboriginal burial ground or sacred site may be impacted, no development, alteration or excavation may occur until meaningful consultation and accommodation is conducted with the Aboriginal community whose interest is affected;

Finally, it is key that municipalities throughout the Province adopt archaeological management plans. The third sub-section we recommend is:

3. Municipalities must develop and use archaeological management plans that ensure development does not occur where there is likely an Aboriginal burial, cultural or heritage site.

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[1] Ipperwash Sacred Artifacts Report: Aboriginal Burial and Other Sacred Sites in Ontario (Prepared for Founding First Nations Circle) December 2005, at page 11.