Mohawk Workers Update RE: Tutela Heights
On September 25, 2012 the M.I.B. informed the Mohawk Workers that during the first two stages of Walton’s archaeological survey, at least three historical sites, one historic industrial site, one possible historic Aboriginal site, two historic “findspots”, 59 pre-contact sites and 85 pre-contact findspots were documented and reported to Brant County. The study, dated August 2010, appears to have been prepared by Archaeological Services Inc. and was not submitted to the County of Brant until February 3, 2011 as Stage 1 and 2 Archaeological Assessment.
A Stage 3 Archaeological Assessment, dated April 2011, also appearing to be prepared by Archaeological Services Inc., was submitted to the County of Brant on May 10, 2011.
Also on September 25, 2012, the Minister of Tourism and Culture’s office was notified of what appear to be glaring violations of the Ministry’s applicable Standards and Guidelines for Consulting Archaeologists (2009). Copies of this objection and disclosure notice were also forwarded to federal officials within the Department of Canadian Heritage. Ontario’s Coroner’s Office and the Cemetery Registrar were also notified.
A Draft Technical Bulletin for Consultant Archaeologists in Ontario was released in 2010 by Ontario’s Ministry of Tourism and Culture. It was intended to help the licensed consultant archaeologist engage Native communities in archaeology “as effectively as possible”. It summarizes the direction on Aboriginal engagement set out in the Standards and Guidelines for Consultant Archaeologists and provides information and resources to assist consultant archaeologists in successfully following the standards and guidelines. “
At the end of Stage 3, when formulating a strategy to mitigate the impacts on the following types of Aboriginal archaeological sites through avoidance and protection or excavation [Sections 3.4 and 3.5]:
a. rare Aboriginal archaeological sites;
b. sites identified as sacred or known to contain human remains;
c. woodland Aboriginal sites;
d. aboriginal archaeological sites where topsoil stripping is contemplated;
e. undisturbed Aboriginal sites;
f. sites previously identified as of interest to an Aboriginal community.
When you have engaged Aboriginal communities as part of an archaeological project, you must provide a description of the engagement and a copy of any documentation arising from the process to the Ministry of Tourism and Culture. Submit this information as part of the supplementary documentation included in the Project Report Package. [Section 7.6.2]
Engaging Aboriginal communities at the following additional stages constitutes wise practice, which you are encouraged to follow. You should engage Aboriginal communities:
1. In Stage 1, when conducting the Background Study, in order to identify information sources in local Aboriginal communities (e.g., for information on traditional use areas, sacred sites, and other sites) when available and relevant to the property). [Standards and Guidelines for Consultant Archaeologists Section 1.1]
2. In Stage 1, when evaluating archaeological potential and making recommendations to exempt areas meeting the criteria for low archaeological potential from further assessment, in order to ensure there are no unaddressed Aboriginal cultural heritage interests. [Section 1.4]
3. In Stage 2, when assessing a property and determining archaeological sites that require Stage 3 fieldwork, in order to determine interest (general and site-specific) in the Aboriginal archaeological sites and ensure that there are no unaddressed Aboriginal archaeological interests connected with the land surveyed or sites identified. [Section 2.2]
4. In Stage 3, when making recommendations regarding the excavation or preservation of Aboriginal archaeological sites of cultural heritage value or interest (other than those identified in the standards), in order to review the recommendations with the relevant, interested Aboriginal communities. [Section 3.5]
If human remains are uncovered at any stage in the fieldwork process you must cease fieldwork and report the discovery to the police or coroner. This is a mandatory requirement of the Cemeteries Act, R.S.O. 1990 c. C.4 (the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c.33, [when proclaimed in force]).
2.2 Identifying communities with a potential interest in the project.
Often, more than one community will have an interest in your archaeological project and a historical connection to the area affected by it. Consider the following factors when trying to identify Aboriginal communities with an interest in your project:
Is the geographical location of the project close to Aboriginal communities or within the traditional territory of a present-day Aboriginal community?
Has more than one Aboriginal culture inhabited the area over time? For example, in southern Ontario, both Iroquoian and Algonkian-speaking peoples have occupied land over the centuries. There are several tribes or nations within these broad groupings. Some live in communities in the region today (Chippewa, Mississauga, Six Nations) and some do not (Huron).
Does the project site fall within established or asserted treaty areas?
What cultural affiliation has been inferred for the archaeological site or sites in the project area through archaeological fieldwork and analysis?
Where the cultural affiliation of the project area or archaeological sites within the project area is uncertain, approach Aboriginal communities with potential interest with as much information as possible and seek their input to inform your professional interpretation.
3.3 Incorporating Input from the Aboriginal community
As noted in Part 1 of this bulletin, when recommending avoidance and protection or excavation for certain types of archaeological sites, you must engage Aboriginal communities in the development of a strategy to mitigate impacts to the site.
The standards and guidelines make it clear that avoidance and protection is the preferred option for archaeological sites with cultural heritage value or interest. This option preserves the sites intact [See Standards and Guidelines for Consultant Archaeologists, Section 4.1].
It is good practice to discuss mitigation options with the Aboriginal community early in the archaeological project, ensure that the options are clearly understood, and document the community’s preference. You must consider the input of the Aboriginal community at the point when you make mitigation recommendations. However, because proponents have the greatest flexibility at the start of a development project, it is a good idea to make the community’s preference known to your client as early as possible.
Where your recommendations do not reflect the community’s preference, you should communicate this to your client as early as possible as well.
3.5 Reporting on Aboriginal engagement to the Ministry of Tourism and Culture
When archaeological fieldwork has included engagement with Aboriginal communities, you must include documentation of the engagement process in the project report package [see Standards and Guidelines for Consultant Archaeologists, Section 7.6.2]. The documentation must describe and give reasons for the following:
who was engaged;
engagement procedures (e.g., communication protocol, data sharing agreements between you and the community);
dates and Stages when engagement took place;
strategies to incorporate community input into the fieldwork (e.g., community report review, Aboriginal monitor); and
process for reporting results to the community (e.g., oral presentations, plain language documents).
Archaeological project reports submitted to the Ministry of Tourism and Culture are publicly accessible through the Ontario Public Register of Archaeology Reports.
When Aboriginal communities have been engaged in the fieldwork process, do not include any information the Aboriginal community identifies as private or sensitive (e.g., information related to burials, secret or sacred places, personal information) in the report that will be filed in the publicly accessible report register. [Section 7.3.1 of the Standards and Guidelines for Consultant Archaeologists] Such sensitive information should be provided separately, in either the cover letter or as supplementary documentation, so that it will not be entered in the register.
Please note, however, that private or sensitive information contained in any supplementary documentation to the ministry would be subject to the Freedom of Information and Protection of Privacy Act (FIPPA), which provides the public a legal right of access to most governmentheld information. Although private or sensitive information is protected through the provisions of this legislation, it is important that you work with the Aboriginal community to determine what information is suitable for sharing with the ministry.
68. No person shall disturb or order the disturbance of a burial site or artifacts associated with the human remains except,
(a) on instruction by the coroner; or
(b) pursuant to a site disposition agreement. R.S.O. 1990, c. C.4, s. 68.
Unmarked burial sites
(2) Section 68 does not apply to a person investigating the nature or origin of the site who is disturbing the site in the course of the investigation. R.S.O. 1990, c. C.4, s. 70 (2).
(3) A person conducting an investigation shall do so with the minimum disturbance to the site that is reasonable in the circumstances. R.S.O. 1990, c. C.4, s. 70 (3).
(4) If the Registrar is of the opinion that an investigation under subsection (1) would impose an undue financial burden on the land owner, the Registrar shall undertake the investigation. R.S.O. 1990, c. C.4, s. 70 (4).
(a) an unapproved aboriginal peoples cemetery;
(b) an unapproved cemetery; or
(c) an irregular burial site. R.S.O. 1990, c. C.4, s. 71 (1).
(2) An irregular burial site is a burial site that was not set aside with the apparent intention of interring therein human remains. R.S.O. 1990, c. C.4, s. 71 (2).
(3) An unapproved cemetery is land set aside with the apparent intention of interring therein, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were not one of the aboriginal peoples of Canada. R.S.O. 1990, c. C.4, s. 71 (3).
(4) An unapproved aboriginal peoples cemetery is land set aside with the apparent intention of interring therein, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were one of the aboriginal peoples of Canada. R.S.O. 1990, c. C.4, s. 71 (4).
(5) For the purposes of this section and section 72,
“unapproved” means not approved in accordance with this Act or a predecessor of this Act. R.S.O. 1990, c. C.4, s. 71 (5).
Site disposition agreement
72. (1) The Registrar, on declaring a burial site to be an unapproved aboriginal peoples cemetery or an unapproved cemetery, shall serve notice of the declaration on such persons or class of persons as are prescribed. R.S.O. 1990, c. C.4, s. 72 (1).
(2) All persons served with notice under subsection (1) shall enter into negotiations with a view of entering into a site disposition agreement. R.S.O. 1990, c. C.4, s. 72 (2).
(3) If a site disposition agreement is not made within the prescribed time, the Registrar shall refer the matter to arbitration. R.S.O. 1990, c. C.4, s. 72 (3).
(4) Despite subsection (3), the Registrar, if of the opinion that an agreement may be reached, may defer referring the matter to arbitration so long as there appears to be a reasonable prospect of an agreement being reached. R.S.O. 1990, c. C.4, s. 72 (4).
(a) furnishes false, misleading or incomplete information in an application under this Act or in a statement or return required to be furnished under this Act or the regulations;
(b) fails to comply with an order made under this Act; or
(c) contravenes any provision of this Act or the regulations. R.S.O. 1990, c. C.4, s. 79 (1).
(2) Every director or officer of a corporation who concurs in an offence under this Act is guilty of an offence. R.S.O. 1990, c. C.4, s. 79 (2).
(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $20,000 and, on a subsequent conviction, to a fine of not more than $20,000 and to imprisonment for a term of not more than one year. R.S.O. 1990, c. C.4, s. 79 (3).
(4) A corporation that is convicted of an offence under this Act is liable to a fine of not more than $40,000. R.S.O. 1990, c. C.4, s. 79 (4).
(5) Subject to subsection (6), no proceeding under this section shall be commenced more than two years after the offence was committed. R.S.O. 1990, c. C.4, s. 79 (5).
(6) No proceeding under clause (1) (a) or subsection 35 (2) or 36 (3) or section 68 shall be commenced more than one year after the facts upon which the proceeding is based first came to the knowledge of the Registrar. R.S.O. 1990, c. C.4, s. 79 (6).
(7) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to make compensation or restitution in relation thereto. R.S.O. 1990, c. C.4, s. 79 (7).