Saturday, September 10, 2016

Conservation authorities meet cultural heritage

Quick question (okay, two): Who is the biggest landowner in Ontario?  Who is the second?

The provincial government owns by far the most land in Ontario. The province’s 36 conservation authorities are, collectively, the second largest owner.

The 1842 house at the John R. Park Homestead near Kingsville, a property of the Essex Region Conservation Authority

Like it or not, all this CA-owned property comes with a lot of cultural heritage. Because the watersheds CAs manage historically provided for sustenance, transportation and power for industry and also established patterns of settlement, these areas are inevitably associated with cultural heritage resources. Mills, bridges, dams, farmhouses and other buildings (especially those located on floodplains), cultural heritage landscapes, the list goes on.

The impact of CAs extends not just to the property they own but, because of the regulations they make, to private property too.

To step back for a minute… Ontario’s conservation authorities are unique creatures — government agencies somewhat awkwardly positioned between the provincial and the municipal levels.  Section 20 of the The Conservation Authorities Act sets out a CA’s broad mandate:

The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals.

Within their watershed boundaries, CAs are the bodies considered to have prime responsibility for water management, in terms of water quantity and related hazards. To carry out this responsibility, authorities have two types of powers — administrative and regulatory. [Note 1]

Administrative powers are extensive and include such things as:
  • studying the watershed and determining a program whereby the natural resources of the watershed are conserved, restored, developed and managed
  • acquiring by purchase, lease or otherwise and expropriating any land that the CA may require, and selling, leasing or otherwise disposing of land
  • erecting works and structures and creating reservoirs by the construction of dams
  • altering the course of any river, canal, or stream
  • using lands that are owned or controlled by the authority for any purposes (not inconsistent with its mandate) it considers proper
  • using lands owned or controlled by the authority for park or other recreational purposes, and erecting facilities for such purposes
  • collaborating and entering into agreements with other government agencies, municipal councils, organizations and private owners.

As to regulatory powers — subject to the approval of the Minister of Natural Resources and Forestry, CAs can make regulations, including regulations for:
  • prohibiting or regulating or requiring the permission of the authority for changing or interfering with river/stream channels or wetlands
  • prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, pollution or the conservation of land may be affected by the development.

CAs’ regulations control activities in river and stream valleys, waterfronts, and wetlands. While development regulations do not technically control land use — this is a municipal responsibility after all [Note 2] — they can have major impacts on what is done, or not done, with property.  Including, for our purposes, the conservation and adaptive reuse of heritage structures.

Now, when it comes to cultural heritage, conservation authorities’ track record is decidedly mixed.

There are many examples of CAs playing an important role in the conservation of cultural heritage assets. CAs have been part of success stories in identifying, preserving and repurposing old mills, ruins, and farmhouses, among other cultural resources.  These stories have often involved CAs partnering or collaborating with local heritage organizations.

Proctor House Museum, Brighton

Take the saving and restoration of the Proctor House in Brighton by the Lower Trent Region Conservation Authority. [Note 3]

Rockwood mill ruins

Or the stabilization of the woollen mill ruins in Rockwood by the Grand River Conservation Authority. [Note 4]

But there are many, many instances where a conservation outcome was not the case…

Thamesford Mill, 2008   Photo courtesy Sarah Hill

Thamesford Mill partly demolished, 2012  Photo courtesy Sarah Hill

The mill on the Middle Thames in Thamesford was recently demolished by its owners, allegedly because the Upper Thames River Conservation Authority was too strict and wouldn’t let them redevelop the property and adaptively reuse the mill building. [Note 5]

Motherwell General Store

Then there is the old Motherwell General Store north of St. Marys, where an apparent case of demolition-by-neglect by the same CA is underway. [Note 6]

Indeed there is an overall perception in the heritage community that the management of cultural resources by CAs — while improving — is far from satisfactory, with the result that these resources are ignored, neglected and, all too frequently, lost or destroyed.  

The root of the problem is that authorities generally do not see cultural heritage conservation as part of their mandate.  Look at section 20 of their legislation: the exclusive focus is on “natural resources.”  In fact the word “cultural” appears nowhere in the Conservation Authorities Act.  CAs often do not recognize historic buildings and other cultural features as valuable resources worthy of conservation, do not understand how to approach their conservation and are not equipped to be good stewards.

Don’t rely on the town or township to come to the rescue.  While there are numerous examples of the heritage designation of CA-owned properties by local municipalities, it is unrealistic to expect that municipal councils will proactively identify and protect cultural heritage resources in the hands of authorities.  Most municipalities especially in rural areas will not be in a hurry take on big, multi-jurisdictional CAs by designating and regulating their property.  Particularly where the CA’s attitude is unsympathetic.

One potential solution?  Make all conservation authorities subject to the province’s 2010 Standards and Guidelines for Conservation of Provincial Heritage Property.  As MNRF is itself subject to the S&Gs, it would not be illogical if CAs —  public agencies for which the ministry is responsible — were also brought under the S&Gs.  (This would mean, however, that authorities’ property could not be designated by municipalities.)  [Note 7]

Proctor House Museum interior

Well, it just so happens that the provincial government is currently undertaking a review of the legislation, regulation and policy framework governing Ontario’s conservation authorities.  The purpose of the review is to ensure that framework “is meeting the needs of Ontarians in a modern context.”  [Note 8]

One might make the case that the modern needs of Ontarians include a clear expectation that public agencies like CAs will be sensitive to cultural heritage and act responsibly when it comes to heritage assets within their care and control or over which they have some regulatory jurisdiction.

A hopeful sign for the review: a focus group session on conservation authorities and cultural heritage conservation was held in Toronto on July 18, 2016.  The session was organized and hosted by the Ministry of Tourism, Culture and Sport, with support from MNRF, and included representatives from a number of heritage/historical organizations, including two from Architectural Conservancy Ontario.  A very interesting and useful meeting, by all reports.

The 1840s double English Wheat Barn on the McVean Farm in Brampton, owned by the Toronto Region Conservation Authority and designated by the City of Brampton

Note 1:  Section 21 of the Conservation Authorities Act sets out the administrative powers of a Conservation Authority. The regulatory powers are in section 28. In that section “development” means:

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,
(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,
(c) site grading, or
(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere

Note 2:  Another way of describing the different roles is that conservation authorities examine the technical feasibility of proposed activities from a water management perspective, while the municipal land use planning process examines proposals from the point of view of relevant social, economic, and environmental matters.

Note 3:  The house and 95 acres was donated by the Proctor family to the Lower Trent Region Conservation Authority in the early 1970s. An initial recommendation to demolish the house was opposed by a local group called Save Our Heritage Organization (SOHO). With the aid of a federal government grant the group was able to restore the house. The LTRCA then approved SOHO’s proposal to operate the building as a historic house museum, which opened in 1976 and is marking its 40th anniversary.

Note 4:  The Rockwood Woolen Mills on the Eramosa River were established in 1867 and the current stone structure built in 1884. After the closure of the mill in 1925, the site was transformed into a private park; in 1959 the Grand River Conservation Authority obtained the mill and land and the current park opened in 1963. A large restoration of the mill ruins was completed by the GRCA in 2010-11. The ruins are open to the public and can be rented for weddings or other special occasions for $1000.

Note 5:  More on the story of loss of this 1898 landmark here: 

This may be a case where CA regulations — or the interpretation and enforcement of the regulations — needlessly complicated and ultimately doomed efforts by the property owner to retain and adaptively re-use a historic structure. Regulations on floodproofing requirements are one example. When it comes to heritage sites greater sensitivity and flexibility in the making and application of CA regulations is called for.

A related issue has to do with mill ponds and mill dams. Mill ponds are a vital component of the distinctive cultural heritage landscapes of many Ontario communities. At the same time CAs may favour unimpeded streams for fish conservation and other natural heritage reasons. This apparent conflict will increase as more dams age and require attention. Solutions to this widespread dilemma need to be found.

Note 6:  More on this structure, still standing but in a decrepit state, here:

Situations like the Motherwell store raise an important question — is CAs’ ownership of cultural heritage resources always in the public interest? Many times CAs acquire property for projects or programs that are ill-considered or do not proceed. They find themselves as landlords of buildings and other cultural resources that they do not want to manage, and boarding up and demolition are tempting "solutions." The Grand River Conservation Authority is currently struggling with the issue:

There appear to be institutional and bureaucratic obstacles that prevent CAs from disposing of property surplus to their core needs (through sale or long-term lease of properties or sale subject to conservation easements or other agreements). In many cases cultural heritage properties are better in private hands; sale/lease relieves the CA of stewardship responsibility and the proceeds can be put to other use.

Where cultural heritage properties do continue in CA ownership, CAs should be encouraged to pursue partnerships and other cooperation with local heritage/cultural organizations in the use and ongoing management of the property.

Note 7:  Inclusion of conservation authorities in the list of public bodies subject ot the S7Gs is likely to be opposed by MNRF and CAs themselves. For more on the S&Gs and the policy thinking about which public entities to include/exclude, see my previous post on this topic: 

Note 8:  The review began in the summer of 2015. In May 2016 MNRF released a consultation document “Conserving Our Future: Proposed Priorities for Renewal” setting out the government’s priorities for the next phase of the review. See

Thursday, August 25, 2016

What's wrong in Rondeau? Part two: OMB turns down HCD

To recap from last time: the owner of Rondeau Provincial Park, the Ministry of Natural Resources and Forestry, appealed the designation of part of the park to the Ontario Municipal Board.  The basis for the appeal was that the Municipality of Chatham-Kent had exceeded its jurisdiction in designating the historic cottage community in the park as a heritage conservation district under Part V of the Ontario Heritage Act. (Note 1)

C-K defended its designation and was supported by the Rondeau Cottagers Association (RCA).

The OMB issued its 12 page decision on July 14, 2016.  It allowed the appeals and ordered the district designation by-law repealed. (Note 2)

In accepting that C-K did not have the authority to designate, Board Vice-Chair Steven Stefanko looked at two statutes: the Provincial Parks and Conservation Reserves Act, 2006 (PPCRA) and the OHA.

Starting with the PPCRA, the Board noted the Act’s purpose:

[T]o permanently protect a system of provincial parks and conservation reserves that includes ecosystems that are representative of all of Ontario’s natural regions, protects provincially significant elements of Ontario’s natural and cultural heritage, maintains biodiversity and provides opportunities for compatible, ecologically sustainable recreation. (s. 1)

And who is responsible for provincial parks:

The Minister is responsible for the control and management of provincial parks and conservation reserves… (s. 12 (1))

And apparently who is not:

For municipal purposes, any land set apart as a provincial park or conservation reserve … shall … be deemed to be separated from any municipality of which it formed a part…. (s. 31 (1))

One of the first questions, then, was whether C-K passed the heritage district by-law for a “municipal purpose.”  Noting that the HCD “allows the Municipality to exert some control and management over the cottage community in the Park”, the Board had no trouble concluding that it did.  And that the by-law was also at odds with the minister’s exclusive authority under section 12.

Well, in that case it would seem the only way the HCD could be saved is if somehow the Ontario Heritage Act trumps the PPRCA.  Which is what C-K and the RCA argued.

Subsection 68 (3) of the OHA does say:

Where there is a conflict between this Act or the regulations and any other Act or regulation, this Act or the regulations shall prevail.

But the Board found there was no conflict between the two pieces of legislation.

The OHA says at the beginning of both Part IV and Part V (in subsections 26.1 (1) and 39.1.1 (1)) that these parts of the Act — and the designation powers in them — do not apply to property described in clause 25.2 (2) (a).  This clause says:

25.2 (1) In this Part,
“property” means real property and includes all buildings and structures thereon.
(2) This Part applies to property,
(a) that is owned by the Crown in right of Ontario or by a prescribed public body;

The policy behind all this — keeping municipal fingers out of provincial pies — was one of avoiding overlap and potential conflict between Ontario’s two main heritage protection regimes: heritage designation by local municipalities under Parts IV and V, which go back to the passage of the OHA in 1975; and mandatory conservation standards and guidelines for provincially owned heritage property, added in a new Part III.1 in 2005.  (Note 3)

So the application, or rather non-application, of Part V to a provincially owned park is clear, n’est-ce pas?

But does it matter that the cottage buildings themselves are owned not by MNRF but by the cottagers?

The OMB determined that this unusual and rather awkward fact did not alter the limitation established by the legislature on the designation of Crown property. (Note 4)

Speaking of the provincial standards and guidelines, the parties supporting the HCD had one more, rather pointed argument, although something of a long shot.  They suggested that, with respect to Rondeau park, a) MNRF was delinquent in complying with the S&Gs, specifically the requirement to identify provincial property of cultural heritage value or interest; and b) the heritage district by-law essentially satisfied that requirement… and therefore should be upheld.

Nice try, but the Board said this was mixing apples and oranges:
“Any delinquency on the part of the MNR (sic) to evaluate and/or identify provincial heritage properties is not a jurisdictional argument with respect to the passing of the By-law….”

In light of its conclusions thus far, the Board didn’t really need to consider MNRF’s other argument that the designation was contrary to C-K’s Official Plan.  The OP says that lands within the park “are not subject to municipal planning documents.”  The Board made the unsurprising finding that “heritage conservation is a planning matter and the Heritage By-law is therefore, in my estimation, a municipal planning document.”

So add non-conformance with the OP to the designation’s defects.

A rare (the only?) brick cottage at Rondeau

In my view the repeal of the Rondeau Provincial Park Heritage Conservation District was the right decision in this case.  But, while misguided, the HCD was a valiant effort to address the long-simmering issue with the cottages we looked at last time.  And that issue, with its fast approaching “doomsday” of December 2017 — when all 283 cottage leases expire — must still be settled.

By taking designation options off the table the Ontario Municipal Board has made it crystal-clear that the Ministry of Natural Resources and Forests is in the driver’s seat for finding a long-term solution.

It should also be obvious that the way forward involves MNRF recognizing its obligations under the Standards and Guidelines for the Conservation of Provincial Heritage Properties and, to start, assessing (and embracing!) the cultural heritage values of Rondeau.

Equally obvious, given the make-or-break situation of the Rondeau cottagers and their ownership of the cottages, is that the solution must entail MNRF working with the Rondeau Cottagers Association.

Might there be a role for the Ministry of Tourism, Culture and Sport — which among other things monitors compliance with the provincial S&Gs — in brokering this solution?

Time is running out.  Tick tock.

Note 1: In explaining the boundary of the proposed Rondeau heritage conservation district the HCD study states: "The concentration of resources within the proposed Heritage Conservation District includes both natural and built resources, in the form of the Park`s natural setting, beach areas, trails, roads, cottages, Park buildings, and supportive buildings. These features are all linked together at Rondeau Provincial Park and form a concentration of resources that are linked to the early cottaging industry in Ontario." (p. 48)

Note 2: See:

Note 3:  The detailed S&Gs were approved in 2010. See my earlier posts on this topic, especially: The intent was that all property of cultural heritage value in the province be subject to either heritage designation or the S&Gs, i.e. no gaps. The divided ownership between land and cottage at Rondeau (and elsewhere) poses a particular challenge however.

Note 4: It is hard to see how the Board could have come to a different conclusion since the definition of property in Part V is “real property and includes all buildings and structures thereon.” MNRF owns the “real property” of Rondeau, if not the privately owned cottages. Looked at another way, there is no way to designate a building or structure without the land on which it stands.

Saturday, August 13, 2016

What's wrong in Rondeau? Part one: The park and its cottages

And summer’s lease hath all too short a date
~ William Shakespeare, Sonnet 18

It’s high summer and those of us who aren’t would probably like to be at a cottage.

How about one like this?

A 1914 log cottage (originally the Blenheim Old Boys Club) at Rondeau Park

This cottage is in Rondeau Provincial Park, on Lake Erie south-east of Chatham, Ontario.  Rondeau is a big sand spit jutting into the lake creating a circular — ronde eau — bay (actually more egg-shaped).  

Established by statute in 1894, Rondeau is the second-oldest provincial park in the Ontario, just after Algonquin in 1893. (Note 1)  The Rondeau Provincial Park Act set apart over 8,000 acres of the Rondeau peninsula as a “Public Park Forest Reservation and Health Resort for the benefit, advantage and enjoyment of the people of Ontario.”

Supporting the “health resort” objectives of the park, the legislation includes specific provisions relating to “the lease...of such parcels of land in the park as may be deemed advisable for the construction of buildings for habitation during the summer, and such other buildings as may be necessary for the accommodation of visitors or persons resorting to the park as a sanitarium for health or summer resort.”

From the start cottages were a key component — they provided seasonal accommodation for families and their leases created income to help make the park self-sufficient.  The first cottages at Rondeau date from the 1890s and they continued to be built through the first half of the twentieth century with the number of cottages peaking at about 450 in the 1950s.

About that time the attitude towards cottages of the owner of the park — the Department of Lands and Forests, now the Ministry of Natural Resources and Forestry (MNRF) — started undergoing a change.  Cottages built and owned privately on leased lots came to be seen as incompatible with the long-term goals of the park to preserve the natural environment and provide for public recreational use. (It’s worth noting that the cottage lots comprise only about one percent of the park and that all waterfront and beaches are public.)

The province stopped approving new cottages and over time, as cottages came up for sale, began buying them… and demolishing them.  From 451 the number of cottages has fallen to 283 (and counting — down).

Cottage lot leases, customarily for 21 years and renewable, were last renewed in 1996, without the renewable clause.  All of the remaining leases are due to expire in less than a year and a half… on December 31, 2017.

"Declaration of Rights" from Rondeau Forever: A Community Forever, 2015

Needless to say, the cottagers, many of whose families have been at Rondeau for generations, are not happy with the situation.  The Rondeau Cottagers Association (RCA) strenuously opposes the removal of cottages and the potential end of the 125 year-old cottage community at Rondeau.

With the fast-approaching termination of the leases the long-simmering cottage issue is clearly coming to a head. (Note 2)

Not coincidentally, something else is expiring — has expired in fact.  The park’s current management plan was adopted in 1991 and aimed to guide the management and operation of Rondeau for 20 years. (Note 3)

While the plan acknowledges the importance of cultural and historic resources in the park, they are clearly of secondary interest.  For example, although a key provincial parks objective is “to protect provincially significant elements of the natural and cultural landscape of Ontario”, under this heading the plan discusses only natural features of the park.

The plan does say: “A cultural heritage resources management strategy will be prepared to guide exploration, preservation and utilization of Rondeau’s cultural resources.”  But after 25 years there is no evidence this strategy has ever been done.  And no indication the now outdated plan is being revised.

There is little doubt the cottages issue is holding things up.

Enter the RCA, which in 2011, on its own initiative, commissioned a cultural heritage study of Rondeau.  The consultants 2012 report, Rondeau — A Cultural Heritage Landscape, makes a strong case that the park is a cultural heritage landscape of not just local but provincial significance. (Note 4)

A couple years go by.  Then things really get interesting.  The municipality, Chatham-Kent, steps in and in early 2015 puts Rondeau Provincial Park on its municipal heritage register. (Will it surprise you that a good many of the cottagers are from Chatham?)

Not content with listing the park under the OHA, C-K proceeds to study the park for potential designation as a heritage conservation district under Part V of the Act. (Note 5)  That moves forward to the preparation of an HCD plan.  Then, in October of last year, the municipality — in a move both admirable and audacious — designates the built-up area of the park as an HCD.

Well, you know what that would do… demolition or removal of cottages, not so fast!

To all this — including public meetings on the proposed HCD — the park’s owner, MNRF, could not have been oblivious; but it seems the passage of the designation by-law was what finally prompted a response.  They appealed… and last month the Ontario Municipal Board came to Chatham.

What happened?  Tune in next time for “What’s wrong in Rondeau? (part two).”

Note 1: In case you’re wondering, Ontario now has 329 provincial parks and, dating from 1994, 292 conservation reserves. The Ministry of Natural Resources and Forests distinguishes these two types of protected area as follows:

Provincial parks
Protect significant natural and cultural features in the province while supporting Ontario’s economy. Regulated under the Provincial Parks and Conservation Reserves Act, they are important for outdoor recreation, scientific research and environmental monitoring, and education.

Conservation reserves
Protect significant natural and cultural features while providing opportunities for a variety of compatible traditional activities (e.g. fishing, hunting, trapping). Regulated under the Provincial Parks and Conservation Reserves Act, they are also important for scientific research and environmental monitoring.

Note 2:  The situation at Rondeau has some parallels with that of Toronto Island. There the decades-long wrangling over the future of the island cottage community was only finally settled with the passage of special legislation, the Toronto Islands Residential Community Stewardship Act, 1993. There's also been an issue with cottages in Algonquin Park, but there the cottages are scattered throughout the park, while at the much smaller Rondeau they form a village-like community.

Note 3: The Rondeau Provincial Park Management Plan can be found here: 

Note 4: The consultants, George Robb Architect and MHBC, “concluded that the cottages at Rondeau are an important part of the formative cottaging history in the Province. Together with the cultural heritage and natural landscape setting, the collection of built heritage resources represents a major contribution to the local regional economy and identity.”