On June 5, 2025, Bill 5, the Protect Ontario by Unleashing Our Economy Act, 2025, received Royal Assent, which on a day to be named by order of the Lieutenant Governor in Council (“LG”), will introduce new sections 66.1 and 66.2 to the Ontario Heritage Act (the “OHA”). Once ordered into effect, new section 66.1 authorizes the LG to make orders exempting certain properties from archaeological requirements under Part VI of the OHA, where such exemptions could potentially advance one or more of the listed provincial priorities, including transit, housing, health and long-term care, other infrastructure or such other properties as may be prescribed.
On October 2, 2025, the Province published the first draft of the Archaeology Exemption Criteria Regulation (the “Draft Regulation”) on the Environmental Registry of Ontario (“ERO”) for public comment here.
The Draft Regulation proposes to define a “significant known archaeological site” as an archaeological site that the LG has determined to have significant cultural heritage and value or interest (“CHVI”). The LG’s determination must include either a determination that the site has CHVI by a person licensed under the OHA based on archaeological fieldwork or identification by an Indigenous community that the site has CHVI based on information the LG considers appropriate and significant.
Further, the Draft Regulation sets out the criteria that must be met for a property to be eligible for an exemption from an archaeological assessment. The criteria are proposed to include:
- A minister has considered the archaeological potential of the property, notified all Indigenous communities that have or may have aboriginal or treaty rights which may be adversely impacted and submitted a report to the LG containing information respecting its considerations and recommendations.
- The applicable ministry has provided written confirmation to the LG that all Indigenous communities potentially affected were notified of the recommendation.
- In the opinion of the LG, the proposed activities are economically significant or strategically important to the Ontario economy.
- The property does not include a “significant known archaeological site”, burial site, cemetery or is the site of a former Indian residential school, in whole or in part.
- The property does not include an archaeological site identified as part of a designation under sections 29, 34.5, 41 or 52 of the OHA, or as part of a registration on title of an easement under clause 10(1)(c) or section 37 of the OHA.
Finally, the Draft Regulation proposes to exclude orders being issued exempting properties from the requirements set out in sections 51.1 to 51.3, 61.1, 62, 64 or any provision of Part VI.1 of the Act, which relate to inspections and investigations of properties.
The Draft Regulation is open for comment until November 16, 2025. As the comment period continues, the MCM invites feedback which it will consider prior to finalizing the Draft Regulation.
For questions or guidance on the Draft Regulation submitting feedback, Davies Howe LLP’s Land Development team is ready to assist.