Ontario's "Protect Ontario by Unleashing Our Economy Act, 2025," also known as Bill 5, received Royal Assent on June 5, 2025 marking a significant legislative shift within the province. While the provincial government promotes this omnibus bill as a means to accelerate economic development and reduce "red tape" it is viewed by Indigenous Nations and their allies as a profound threat to Indigenous cultural heritage, constitutionally protected rights, and the very spirit of reconciliation.
We have previously explored how Bill 5 with its focus on "unleashing" the economy, systematically dismantles protections across various sectors, including creating "regulation free" Special Economic Zones, amending the Mining Act, and weakening the Species Conservation Act.
In the final post of this series, we will review how Bill 5 affects the Ontario Heritage Act (OHA), 1 including changes to the protection of archaeological sites, artifacts and assessment processes, which are often deeply intertwined with Indigenous cultural heritage.
The Ontario Heritage Act: Eroding Protections for Indigenous Cultural Heritage
The amendments to the OHA are primarily aimed at updating enforcement and compliance rules regarding artifacts and archaeological sites. However, these changes carry profound and concerning implications for the protection of Indigenous cultural heritage.
Broad Exemption Powers and Extinguishment of Causes of Action (s. 66.1 and 66.2):
Possibly the most significant change with potential negative impacts is found in new sections 66.1 and 66.2. Section 66.1 allows the Lieutenant Governor in Council to exempt properties from OHA requirements, or related regulations, or from archaeological assessment requirements under other Acts, if it "could potentially advance specified provincial priorities" such as transit, housing, health and long-term care, or other infrastructure. Furthermore, the new s.66.2 explicitly extinguishes causes of action against the Crown and other specified persons related to these exemptions or actions taken under sections 66.1 and 66.2.
The ability to exempt properties from heritage protections and archaeological assessments based on "provincial priorities" could bypass the discovery and protection of Indigenous cultural heritage sites, including burial grounds. The extinguishment of causes of action severely limits the legal recourse available to Indigenous communities and others who might be negatively affected by such exemptions. This could lead to irreparable damage to significant Indigenous cultural landscapes and archaeological sites without any accountability or compensation. As Temagami First Nation Chief Shelly Moore-Frappier states, "Our cultures, our heritage, our Ancestors are everywhere. But we don't always know exactly where they are. That's why it's so important to ensure that there are strong rules to protect sites before they are disturbed".2
Expanded Inspection Powers (s. 51.2):
The amendments expand the inspection powers under section 51.2 of the OHA. Inspectors can now conduct inspections not only to ensure compliance by licensees but also for "assessing whether any artifacts or archaeological sites are on any land, or land under water, in the Province".3 These new assessment-focused inspections can only be conducted under the Minister's order.4 While the stated purpose is to identify artifacts and archaeological sites, the requirement for a Minister's order for assessment-based inspections could centralize control over initial site identification. This might impact how and when Indigenous communities are involved in the early stages of identifying potential heritage sites on their traditional territories, as the Minister's directive is the trigger for such inspections. Further, while potential artifacts and archaeological sites must be reported to the Minister and landowner,5 there is no requirement to immediately report the findings to affected Indigenous communities. This may impact how and when communities are involved in identifying potential heritage sites on their traditional territories.
New Assessment Orders (OHA s. 61.1):
Under the newly added section 61.1, the Minister is authorized to issue "assessment orders" directing that no person alter or remove artifacts or other physical evidence of past human use or activity until:
- The licensee has completed archaeological fieldwork;6
- Reported to the Minister that there is "no further cultural heritage value or interest in the site,"7and
- The report has been filed in the provincial register.8
There is no requirement for Indigenous consultation or approval at this critical stage. Whether an artifact or site is of "no further cultural heritage value or interest" is determined by archaeological fieldwork – which is directed and paid for by the license holder. This could lead to situations where sites are deemed clear for development without Indigenous input or consent.
Changes to Disposition of Artifacts and Archaeological Collections (OHA s. 66):
Section 66 is re-enacted, allowing the Minister to direct the deposit of artifacts and materials in a "public institution" or "with an Indigenous community".9 Previously, the act only explicitly mentioned public institutions. Additionally, authorized persons can now enter premises during business hours (but not dwellings) to seize artifacts.10 The Minister can also direct inspectors or investigators to seize artifacts or archaeological material during an inspection or investigation.11
While the inclusion of "Indigenous community" as a deposition option for artifacts is a positive step, the primary authority for seizure and direction remains with the Minister. This might not fully address Indigenous communities' desire for self-determination over their cultural heritage, particularly in cases of repatriation of ancestral remains and artifacts. The expanded power of seizure without warrant for inspectors during inspections also could be a point of contention.
New Investigation Powers and Limitation Period (OHA Part VI.1 and s. 69.1)
A new Part VI.1 is added, authorizing the Minister to appoint investigators12 with powers including obtaining search warrants and conducting investigations for offenses under the Act.13 It also allows for searches in "exigent circumstances" without a warrant14 and mandatory production orders for documents or data related to offenses.15 A new two-year limitation period for prosecution of offenses under the Act is also established.16
While these provisions aim to strengthen enforcement against heritage violations, the two-year limitation period for offenses is likely not sufficient for completion of complex archaeological investigations and the identification of violations by Indigenous communities, especially given the historical disadvantages in accessing information or legal resources.
Undermining the Duty to Consult and FPIC in OHA Context
A concern directly related to the OHA amendments in Bill 5 is the perceived undermining of the Crown's constitutional duty to consult and the principle of Free, Prior, and Informed Consent (FPIC). First Nations leaders have unequivocally stated that Bill 5 was introduced "without consulting the First Nations whose lands and rights are directly affected". The expansive powers granted to the Lieutenant Governor and the Minister within the OHA to exempt properties from archaeological assessments17 and to make unilateral decisions regarding cultural heritage18 directly bypass established consultative processes and the increasing assertion by Indigenous nations that the duty to consult must evolve to a duty to obtain consent. This failure to engage in meaningful, nation-to-nation consultation on changes to the OHA not only breaches the honour of the Crown but also signals a regression in reconciliation efforts.
Limitations on Legal Recourse (OHA s. 66.2 and 68.3)
Bill 5 contains provisions within the OHA that severely limit legal recourse for those impacted by its implementation. Notably, the new section 66.2 explicitly extinguishes causes of action against the Crown and other specified persons related to the broad exemption powers granted under OHA section 66.1, or any actions taken under those sections. Furthermore, Section 68.3 of the OHA, as amended, explicitly states that regulations and orders made by the Lieutenant Governor do not entitle persons to compensation.19 This combined effect of extinguishing causes of action and denying compensation curtails the ability of Indigenous communities to seek redress for damages to their rights and heritage that may arise from OHA-related decisions and exemptions. This creates an imbalance of power and undermines the principle that the Crown must act honourably in its dealings with Indigenous Peoples.
Conclusion: A Call for Genuine Reconciliation
The amendments to the Ontario Heritage Act, coupled with broader legislative changes concerning Special Economic Zones and environmental protections, threaten to reverse progress made in Indigenous-Crown relations and deepen existing mistrust. The enduring responsibility to protect Indigenous cultural heritage for present and future generations cannot be overstated. Short-term economic gains, however significant, should not come at the irreversible cost of destroying sacred sites, burial grounds, and the cultural landscapes that define Indigenous identity and connection to the land.
A renewed call is therefore issued for the Ontario government to uphold the honour of the Crown, respect constitutionally protected Indigenous rights, and engage in genuine, nation-to-nation partnerships. True sustainable development in Ontario must be built on a foundation of mutual respect, shared decision-making, and the explicit recognition of Indigenous sovereignty, ensuring that the prosperity of the province genuinely benefits all its inhabitants, including and especially Indigenous Peoples.
Footnotes
1. Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended by Protect Ontario by Unleashing Our Economy Act, 2025, S.O. 2025, c. 5, Sch 7.
2. Ontario, Chiefs of Ontario –< a href="https://chiefs-of-ontario.org/first-nations-bring-bill-5-concerns-to-queens-park-call-for-legislations-reversal/" target="_blank">First Nations bring Bill 5 concerns to Queen's Park, call for legislation's reversal – Chiefs of Ontario, (Briefing Note), by Chiefs of Ontario – Policy and Communications (Toronto: COO 26, May 2025).
3. Ibid, OHA 2025 s. 51.2(1)(b).
4. Ibid, OHA 2025 s. 51.2(2).
5. Ibid, OHA 2025 s. 51.3(2).
6. Ibid, OHA 2025 s. 61.1(2)(a)(i).
7. Ibid, OHA 2025 s. 61.1(2)(a)(ii).
8. Ibid, OHA 2025 s.61.1(2)(b).
9. Ibid, OHA 2025 s. 66(1).
10. Ibid, OHA 2025 s. 66(4) and (5).
11. Ibid, OHA 2025 s. 66(6).
12. Ibid, OHA 2025 s. 66.3(1).
13. Ibid, OHA 2025 s. 66.4(1).
14. Ibid, OHA 2025 s. 66.6(1).
15. Ibid, OHA 2025 s. 66.8(1).
16. Ibid, OHA 2025 s. 69.1.
17. Ibid, OHA s. 66.1.
18. Ibid, OHA s. 61.1 and 66.
19. Ibid, OHA s. 68.3(1).
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