Historic Roots, Changing Times: A Look At The Proposed Archaeology Exemption Criteria And The Updated Ontario Heritage Tool Kit

The Ontario Heritage Act (OHA) provides the legislative framework for the conservation of Ontario's cultural heritage and is an important vehicle through which municipalities in Ontario can designate and preserve properties that meet certain prescribed criteria for future generations. This year marks the 25th anniversary of the OHA and while its overarching principles have essentially stayed the same, the statute has continued to evolve.

This insight will provide an overview of some of the most recent updates to the OHA and Ontario heritage considerations more generally, namely, the proposed Archaeology Exemption Criteria regulation (ERO 025-1081) and updates to the Ontario Heritage Toolkit (ERO 019-2770) which have taken effect.

Archaeology Exemption Criteria (ERO 025-1081)

Background

As noted in our client alert earlier this year,¹ Bill 5 – Protect Ontario by Unleashing our Economy Act, 2025 which received Royal Assent on June 5, 2025 amended the OHA to permit the Lieutenant Governor in Council to order that a property will be exempt from archaeological and heritage conservation requirements if it could potentially advance provincial priorities such as transit, housing, health and long-term care, infrastructure and other prescribed priorities. In addition, this included an ability for the Lieutenant Governor in Council to make regulations governing these exemptions, including establishing the required criteria to determine eligibility for an exemption. These changes were in addition to a number of other amendments, including an expansion of inspection and enforcement powers for artifacts and archaeological sites. While the provisions related to exemption from archaeological and heritage conservation received Royal Assent, they have not yet been proclaimed.

New proposed regulatory framework

The Ministry of Citizenship and Multiculturalism (Ministry) is now seeking feedback on a proposed new regulation under the OHA to support the amendments made under Bill 5 – Protect Ontario by Unleashing our Economy Act, 2025, in respect of the Archaeology Exemption Criteria. In addition, the Ministry is considering the development of an operational policy to guide the exemption requirements and related process; both are outlined below in more detail.

1. Proposed new regulation
   
   The proposed new regulation sets out the criteria which must be met for a property to be exempt from archaeological assessment pursuant to section 66.1 of the OHA. The request must be initiated by a sponsoring minister, and includes satisfaction of all of the following:

• Consideration of the archaeological potential of the property by the sponsoring minister according to processes and criteria established by the Ministry;
• Notification by the sponsoring minister to all Indigenous communities that have or may have aboriginal or treaty rights that may be adversely impacted by any such exemption;
• Submission of a report by the sponsoring minister to the Lieutenant Governor in Council containing its recommendation of the exemption and including the relevant considerations. The ministry of the relevant minister would also provide written confirmation of the occurrence of the required notifications to all Indigenous communities regarding the proposed recommendation;
• Determination by the Lieutenant Governor in Council that the proposed activity on the property is or will be "economically significant or strategically important to the Ontario economy"; and
• Ongoing protection of specified sites including, any "significant known archaeological site," burial site, aboriginal people's burial ground, cemetery, former residential school, an archaeological site protected by designation or easement under the OHA.

Currently, the Ministry is seeking feedback on the draft proposed regulation until November 16, 2025.

2. Proposed operational policy
   
   The Ministry is also considering the development of an operational policy which would guide the exemption requirements and process, including for example:

• Specifying information that the sponsoring ministry would need to provide in support of the application for exemption (i.e., why an exemption is needed at the point in time, expected economic and/or social benefits and how it supports provincial priorities).
• Potential confirmation of consultation plan.
• A screening process by the Ministry to determine whether there are "known sites of archaeological significance or archaeological potential" to inform its decision on exemption.
• Additional information on conditions to exemptions, where approved.

A draft of the proposed operational policy has not been circulated for comment at this time.

Updates to the Ontario Heritage Tool Kit (ERO 019-2770)

Background

The Ministry staff began revising the Ontario Heritage Tool Kit (OHA Tool Kit) following the introduction of Bill 108: More Homes, More Choice Act, 2019² to incorporate changes related to the OHA. The OHA Tool Kit was delayed at the time given the potential for additional legislative changes to follow (of which there were many),³ with further consultations conducted and additional time provided to municipalities for implementation. The Ministry has now released the updated OHA Tool Kit consisting of five guides.

Overview of the OHA Tool Kit

The OHA Tool Kit provides guidance to municipalities in the identification, protection and conservation of heritage properties. Municipal councils, staff and heritage committees as well as land use planners, property owners and other professionals use the OHA Tool Kit to understand the:

• Heritage conservation process in Ontario.
• OHA and changes to it.
• Provincial Planning Statement, 2024.

The OHA Tool Kit is intended as set of guiding documents within the broader legislative framework, and does not displace or override the statutory authority of the OHA or its regulations.

The OHA Tool Kit is comprised of five separate guidance documents.

1. Designating Heritage Properties: This guide focuses on individual property designation under Part IV of the OHA and touches on, for example: what designation of cultural heritage value or interest is, the designation process, how to conserve these properties into the future and demolition control.
2. Heritage Property Evaluation: This guide focuses on heritage properties and how to identify potential heritage properties, the basics for compiling a municipal register of such properties, researching and evaluating a property for its cultural heritage value or interest.
3. Heritage Conservation Districts: This guide focuses on designating districts under Part V of the OHA which may comprise a few properties in a small area with a tightly arranged group or complex of buildings, a large area with a scattering of buildings and properties or an entire settlement area with a cluster of heritage resources. In addition, the guide covers the designation process and management of the district.
4. Your Community, Your Heritage, Your Committee: This guide focuses on Municipal Heritage Committees, tasked with providing advice to council and provides an overview of the role of these committees, along with tools for building and sustaining them.
5. Heritage Places of Worship: This guide focuses on heritage places of worship, with a view to supporting the conservation and protection of them, particularly as they face dwindling congregations, shrinking revenues and rising costs and aging building stock (among other challenges).

The OHA remains an important vehicle through which municipalities can designate and preserve historical properties in Ontario. That said, as we see with the various legislative changes in recent years including the recent proposed Archaeology Exemption Criteria, even legislation focused on preserving, protecting and promoting cultural heritage resources, evolves with time. As noted above, the OHA Tool Kit aims to compile and clarify the process and changes, however, navigating heritage designations can still be quite complex.

Footnotes

1 Spring brings more changes: Ontario announces the 2025 budget, and Bills 2, 5 and 17 to cut red tape, speed up home construction and protect the economy (May 21, 2025)

2 See our previous client alert on Bill 108 entitled Bill 108, More Homes, More Choice Act - unpacked for more.

3 For example, since Bill 108 received Royal Assent on June 6, 2019, changes to the OHA were made through a number of other statutes, including but not limited to Bill 23: More Homes Built Faster Act, 2022 and Bill 200: Homeowner Protection Act, 2024.

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