Background

In Ontario, archaeology is an activity licensed by the Ministry of Citizenship, Culture and Recreation, whose officials review and comment on the work of license holders. This has been the practice since the proclamation of the Ontario Heritage Act in 1974. Other pieces of legislation that inform the practice of archaeology include the Planning Act and the Cemeteries Act.

The Planning Act has allowed the provincial government to institute a number of mechanisms that have resulted in requirements for archaeological assessments in advance of most major industrial and housing subdivisions and infrastructure projects. This has been quite successful in slowing down the rate of site destruction in southern Ontario, and has created a consulting industry that conducts a major portion of the archaeological work.

Cemeteries have become less of an issue due to the Cemeteries Act, despite the fact that pre-contact period cemeteries are defined as "unapproved aboriginal cemeteries". Aboriginal people must be contacted in the case of all such burial sites, for the purposes of reaching a site disposition agreement. More specifically, the regulations state that the representatives of the deceased in this case shall be "the nearest First Nations Government or other community of Aboriginal people which is willing to act as a representative and whose members have a close cultural affinity to the interred person." The regulations further state that the consent of the representatives is needed before the remains and associated artifacts can be removed from the cemetery, or before scientific analysis of the remains and artifacts can be conducted.

With regards to the protocol that existed between Aboriginal people and archaeologists prior to the AHC initiative, on an individual basis, many archaeologists who met with the Ontario regional committee have made it a practice in their work to consult with members of the Aboriginal community. Archaeologists working for the Ministry of Transportation (MTO), for example, have an established record of contacting Six Nations whenever MTO has any projects in the Oshwekan/Brantford neighbourhood. A number of private consultants work on a regular basis with First Nations on projects that are designed to mitigate any effects that land development might have on archaeological sites in First Nations territories, especially in northern Ontario. In fact, the Planning Act requires local First Nations to be informed of any development project situated within one kilometre of their territory.

Process

The process of regional consultation to address the issues presented in the AHC mandate was begun in February of 1993. A meeting of invited archaeologists and Aboriginal people was organized to initiate discussions regarding the type of consultative process appropriate for Ontario. The first meeting, attended by sixteen people, was facilitated by the Ontario Heritage Foundation, who provided the meeting room for the group.

Overall, the meeting was found to be constructive, and the participants agreed that initiating a dialogue was important and should continue. Coincidentally, however, a number of the archaeologists that had been invited worked for government agencies, and the meeting was held at a government building. Consequently, some questions were raised by the Aboriginal participants as to whether or not the process that had been initiated by the CAA/AAC was tied to the government's proposal to revise the Ontario Heritage Act. It was decided by those present that the next meeting should be a workshop conducted by Elders, and a curator at the Woodland Cultural Centre in Brantford, Ms. Joanna Bedard, invited the group to hold its workshop there. It was also decided that an Aboriginal co-chair should be appointed to the Ontario working group, and Ms. Sylvia Thompson of the Chiefs of Ontario agreed to act in this capacity. There was uncertainty, however, as to when the next meeting could be held.

Thus, our subsequent attempts to arrange workshops for the fall of 1993 and then February 1994, with Elders on the Advisory Council for the Chiefs of Ontario, were postponed. Two more attempts were made in 1994 to reschedule the meeting for a time when it would be convenient for the Elders. In every case, however, Elders were already very busy dealing with the proposed legislation of a new Ontario Heritage Act and other heritage matters, although the committee was assured that our consultation would resume once those matters had been settled. Incidentally, the revised Act was not tabled by the government before it lost the election of 1995 and many matters remain to be settled between the government and the Chiefs with respect to jurisdiction over archaeological concerns.

While waiting to resume the formal consultative process with the Elders, an ad hoc meeting of archaeologists was held in London in the spring of 1994 to respond to the Draft Guidelines for Ethical Conduct Pertaining to Aboriginal Heritage Research and Communication that had been circulated by the AHC. These were discussed and revised and forwarded to the AHC with a covering letter stating the concerns of the archaeologists who had attended the London meeting. It was pointed out that the document could potentially intrude upon existing legislative and regulatory processes in Ontario and, possibly, in other planning jurisdictions.

It was hoped that the AHC could fully appreciate the nature and extent of archaeological research in southern Ontario, both of which are, for the most part, defined by the nature and degree of land development. This relationship has always had very serious implications for archaeological site destruction. For example, it has been demonstrated that for the period from 1951 to 1971, over 5,000 archaeological sites within the Greater Toronto Area alone, were totally destroyed by urban expansion. While the rate of site destruction decreased in the ensuing twenty year period, over 3,000 sites were nevertheless totally destroyed. Moreover, the potential for the loss of resources in the future remains great, due to continuing growth in southern Ontario. It is anticipated for the Greater Toronto Area that almost one million hectares of land will be developed in the next thirty years, resulting in a 40% urban occupancy of the landscape, up from the current 25% level.

Subsequent to the Ontario government's instalment of a number of planning mechanisms as outlined above, approximately 300 sites per year have been documented. The current procedure, however, is under constant pressure from the development community and indeed from other provincial ministries as they seek to streamline the development process. It was felt that a requirement to obtain informed consent from Aboriginal communities in advance of assessment would actually constitute an additional threat to the review and assessment process since it is unlikely that we would be able to continue to meet existing development schedules. It was recommended, therefore, that archaeologists in Ontario should seek to negotiate protocols with Aboriginal communities, where they have not already been established, in order to address that professional responsibility as well as to ensure the continuing conservation and protection of archaeological features.

Evaluation of Process

The timing of the AHC initiative with respect to the new Ontario Heritage Act could not have been more inconvenient for our process. On November 30, 1993, the former Ontario Ministry of Culture, Tourism and Recreation released their revised working draft of proposed legislation, prepared by ministry staff, based on a report from the Minister's Advisory Committee on New Heritage Legislation (MAC), which was charged with developing a stakeholder's consensus on what new legislation should say.

While 13 heritage groups were represented on the Ministry's committee, the ministry conducted separate discussions with the Chiefs of Ontario reflecting a government-to-government relationship between First Nations and the Province of Ontario. A number of Aboriginal organizations also made presentations during the original public consultation process, however, including the Association of Iroquois and Allied Indians, the Chiefs of Ontario, the Oneida Council of the Thames, the Union of Ontario Indians, Walpole Island Heritage Centre and the Woodland Cultural Centre. Thus, the time and effort of the Elders were consumed by their work with the new Act.

The working draft now includes a preamble, and has been divided into six parts that interpret the new Act, define provincial and municipal powers, specify aspects of heritage resource management, and provides for heritage facilities, an appeals board, and other general provisions.

The preamble sets forth a philosophical statement concerning what heritage means to the people of Ontario, but also states in the following manner that Aboriginal people have separate rights and responsibilities:

• First Nations and other Aboriginal peoples, who are stewards of lands and waters, culture and traditions and who have a special responsibility given to them by the Creator to protect, conserve and enhance this heritage for the benefit of present and future generations, have their rights recognized and affirmed by s. 35 of the Constitution Act, 1982. (The New Ontario Heritage Act, p. 2)

This was intended to acknowledge the inherent right to self-government and also to recognize that Aboriginal rights are protected under the federal charter. There was also explicit recognition in section 2d (p. 5), of the "the interests and responsibilities of First Nations and other Aboriginal peoples in the conservation and stewardship of heritage". Moreover, it is acknowledged in the Act (Section 3.3) that its application must be consistent with Treaty and Aboriginal rights recognized and confirmed by s.35 of the Constitution Act, 1982.

A number of other sections in the proposed new Act allow the provincial government and municipal councils to enter into agreements for heritage conservation purposes with any First Nation. Also, to explicitly recognize that Aboriginal people were stewards of the land as stated in the preamble, First Nations, in addition to the Crown, a conservation authority, a municipal council, and any public body, are given the power to enter heritage covenants or easements with land owners.

The question of ownership of artifacts, or "heritage objects," was addressed, and pertained to artifacts found on "protected heritage sites". The Crown has asserted ownership of "all heritage objects, except in cases where a true owner is established". In those cases, "the Minister may enter into agreement with First Nations regarding the conservation, management and disposition of heritage artifacts". It remains to be seen how "true owner" is defined.

Conclusions

Most archaeologists who expressed an opinion find the Statement of Principles much improved over the first draft document. It is acknowledged, however, that we have not had sufficient opportunity to gauge Aboriginal reaction to our initiative. Clearly, in Ontario we must continue to develop local protocols in order to meet both our professional responsibilities of mitigating impacts to the archaeological record posed by development pressures and to respect local protocols developed in conjunction with Aboriginal communities.

Acknowledgments

The author would like to thank Sylvia Thompson, Co-Chair of the Ontario committee, and the following people for attending meetings and contributing to the regional committee process: Chris J.-Andersen, Joanna Bedard, Ann Balmer, Peter Carruthers, Hugh Daechsel, Neal Ferris, (the late) Ray Hill, Chief Richard Kahgee, Ian Kenyon, Rick Kosmick, Marti Latta, Paul Lennox, Trudi Nicks, Robert Pearce, John Peters, Peter Ramsden, David Smith, Michael Spence, Peter Storck and Gary Warrick. Eva MacDonald should also be thanked for her contribution in the capacity of Executive Assistant.