Ontario man has to pay $400,000 in archeological fees to build home

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An Ontario property owner says he was quoted roughly $400,000 in total costs for a provincially mandated archeological assessment and dig after shards of stone were found in his field that have been identified as Indigenous artifacts.

Bruce Cassel said he was told by the ministry of culture and multiculturalism that he could face steep fines or even jail time under the Ontario Heritage Act for disrupting the artifacts.

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“It’s consumed a lot of my time, trying to make sense of the situation, trying to get answers in regards to the situation,” Cassel said. “I’m sure it’s played on me a bit, but at the same token I’m just trying to understand the situation and why I’ve been put in this predicament.”

The process began more than four years ago when Cassel decided to develop a field that he used to farm in the township of North Dumfries, in Waterloo Region. Cassel, who is 75 years old, wanted to build a house on his land for himself and his wife to retire to, but first he needed to get an archeological assessment .

The archeologist he hired performed the first stage assessment in 2020 and the second stage in 2021. He received a budget for the remaining stages of the process around the end of 2022, he said, which totalled around $400,000 and included fees to have relevant Indigenous groups inspect the site.

Cassel said that he was told by the archeological firm that he would have to pay $130 per hour to view the artifacts that were unearthed on his property, and opted not to. However, he was able to view pictures of them and he said they appeared to be shards of stone.

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A report from the stage two assessment, which Cassel shared with National Post, says that archeologists identified 134 pre-contact Aboriginal artifacts, including scrapers and projectile points, in an area of the field.

The site was “interpreted as a large area of ongoing temporary seasonal occupation by Aboriginal communities throughout the Middle Archaic period,” which was around 6,000 to 8,000 years ago, the report says. “Hunting and hide processing were actively undertaken at the site, as well as the production and maintenance of formal tools and projectile points.”

About 15 metres away, archeologists found “12 pieces of Onondaga chert chipping detritus,” which they used to identify a “small activity area of unknown function, occupied by unspecified Aboriginal people during the pre-contact period,” the report says. Chert is a hard sedimentary rock.

The previously unknown historic nature of his field has put Cassel’s retirement plans on hold.

Cassel said he reached out to Greg Rickford, the minister of Indigenous affairs and even Premier Doug Ford. He said their offices told him they would look into the matter, but he hasn’t made any progress.

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“I thought I would try and work through the system and get a hold of the people that are responsible for their system, involved with the system, like my MPP and the premier and whomever. I’ve never thought I’d have to go to the premier or even the council people. But nope, no help whatsoever,” he said.

On July 29, Rickford sent a joint letter with Michael Ford, the minister of citizenship and multiculturalism, which is responsible for the Ontario Heritage Act, that says Cassel was told as recently as June 13 that his only option for developing the land is to proceed to a stage three assessment of the site.

“Such a determination falls within the roles and responsibilities of ministry officials, and therefore is not a political decision. As such, this is not within our purview to intervene – you must follow the established process that any other proponent in this scenario would have to adhere to. Since that determination was made, and throughout the entirety of this process, ministry officials have clearly and explicitly communicated what the necessary next steps are to proceed,” Rickford and Ford wrote in the most recent letter. “In our capacity as ministers, we do not have the ability to waive a Stage 3 requirement after such a determination has been made.”

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In an emailed statement, a spokesperson told National Post that “individuals have the freedom to select any licensed consultant archaeologist they prefer. As with many professional services, fees can vary and are not controlled by the Ministry of Citizenship and Multiculturalism.”

While Cassel did shop around for other estimates, none would give him the cost of a stage four assessment except one that also quoted a figure of about $400,000, he said.

Mark Milke, the founder and president of The Aristotle Foundation for Public Policy, a think-tank whose stated goal is to renew a civil, common-sense approach to public discourse and public policy in Canada, said the government should bear the costs of archeological digs, as this would be fairer for property owners.

“If you, as a private property owner, are forced to endure a regulation that could cost you $40,000 or $400,000, in essence, it devalues your property or could break you. That’s simply not a fair approach to regulating private property,” he said. “What happens in Europe … is that if a government introduces a regulation that’s very costly for you, the burden is on the government to pay for it, on taxpayers. I don’t normally recommend that taxpayers take another bill, but in this case, I think it’s justified.”

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Cassel is not the first Canadian to be faced with this predicament. Homeowners across the country have been saddled with high costs due to unexpected archeological assessments mandated by their provincial governments.

A notable example of this occurred in 2006 when Wendi Mackay of British Columbia was billed $67,000 in initial costs, such as inspections, permits and archeological work, by the archeological branch of the ministry of forests. She wanted to demolish an old house and build a new one on land Mackay and her husband had purchased from her parents.

After the initial bill, a series of additional expenses added $50,000. This would continue until Mackay stopped paying when fees were in excess of $117,000. She sued the province, claiming roughly $600,000 in damages due to the loss in her property’s value and delays in construction. The B.C. Supreme Court rejected her claim but the B.C. Court of Appeal ruled in her favour, determining that the province had no authority to require Mackay to pay for a heritage inspection or investigation.

As outlined in the Ontario Heritage Act, an archeological assessment is divided into four stages. The first stage consists of a review of geographical information, land use, and historical information for the property to determine archeological potential. Stage two consists of archeologists looking over the land for any archeological resources. For a ploughed field like Cassel’s they will walk back and forth examining the surface for artifacts.

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Should artifacts be found, they will move to stage three, a site-specific assessment. In this stage, the archeologist determines the dimensions of the archeological site and maps it out. They then dig one-metre by one-metre square test units across the site. After this, the archeologist may choose to proceed with a stage four assessment, which involves implementing conservation strategies for the site to ensure it is not disturbed or tampered with.

While it is not guaranteed that an archeological assessment will be brought to the fourth stage, Cassel was assured that it would be in his case.

Cassel doesn’t want to resort to litigation but he said he wants to know why the government can charge a private landowner for something that is a matter of public interest.

In the meantime, Cassel has been allowed to reseed his field with alfalfa and timothy grass for hay.

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