Protecting Heritage Trees: A Synopsis

by Barbara Heidenreich Natural Heritage Coordinator, Ontario Heritage Trust March 7, 2011

Heritage Trees can be protected federally, provincially and municipally in several ways.

These are the ways heritage trees can be protected in the province of Ontario, in a nutshell….

•    Under the Municipal Act by a tree by-law (see A below)

A. Trees in a municipality can be protected on private and public property (this needs to be specified) by the passing of a municipal tree by-law under Section 135 of the Municipal Act. This by-law could include “heritage trees” (which would need to be separately defined) and trees that qualify would be listed under a Schedule to the by-law. Or the municipality could pass a stand-alone “heritage tree protection by-law”. The by-law would specify that the tree cannot be damaged or destroyed and must be maintained using “good heritage tree stewardship practices”.

•    Under the Ontario Heritage Act by

(a) designation or listing on a Register by the Municipality (see B below)

(b) designation by the Minister (see C below)

(c) by designating the geographic area as a Heritage

Conservation District (see D below)

(e) by an easement held by the Ontario Heritage Trust (see E below)

B. Under the Ontario Heritage Act (OHA) Part IV, Sections 29 to 34.4, Municipalities may designate by by-law private properties on which a “heritage tree” is located (the owner can put forward the designation or if not interested, others may request designation….the land owner may object and if the by-law is passed the land owner can appeal to the Conservation Review Board under the Ontario Heritage Act). Through designation, the tree cannot be destroyed or altered (OHA Section 30) without the written approval of the Municipality.

Under the Ontario Heritage Act, Section 27, trees can also be “listed” on a Register with or without the landowners consent if deemed of cultural heritage value. This may afford temporary protection (up to 60 days).

NOTE: There are two ways that municipal designation of trees can be initiated: (a) by request of the owner, (b) by request of any ratepayers to the Municipal Heritage Committee (MHC) which can (but it doesn’t always) make a recommendation to Council. While designation is a form of protection that involves recognition and a degree of security, Council can repeal designation by-laws.

C. Under the Ontario Heritage Act Part IV Section 34.5 to 34.9, the Minister of Culture can also designate “properties” (permission of the landowner is not required). Through designation, the tree cannot be destroyed or altered unless the Minister consents (OHA Section 34.5 (2)). This is rarely used….but anyone can petition the Minister.

NOTE: An owner can apply to the Minister to alter or demolish the designated property and the Minister will discuss the request with the Ontario Heritage Trust before rendering a decision.

D. The Ontario Heritage Act allows for the designation by by-law (OHA Part V Section 40.1) of Heritage Conservation Districts (HCD). Trees are generally identified as significant heritage attributes within the scope of almost every existing Heritage Conservation District. While there may not yet be a HCD that focuses only on trees, that is a possible scenario and may occur at some point. HCDs start with a study (OHA Part V Section 40). This is a Council initiated study, but if there is a Municipal Heritage Committee, Council has to consult with the MHC (OHA Part V Section 40(3)). All HCDs are reviewed and approved by the Ministry of Tourism and Culture, Culture Services Unit. Within the HCD there can be no alteration or destruction of the designated heritage features, i.e. the trees.

E. In addition to the above, the Ontario Heritage Trust has the power under the Ontario Heritage Act Part II Section 10(1)(c) and Section 22 to enter into a voluntary heritage conservation easement agreement with a willing landowner to protect heritage attributes on their property. Every easement contains a series of covenants (prohibitions) on what current and all future landowners can do to their property and it would have the potential to prohibit damaging and destroying a qualifying heritage tree. It could also specify the need to apply good heritage tree stewardship principles in its care. The conservation easement agreement would be registered on title binding all present and future landowners. The Trust currently does not hold an easement specifically over a single heritage tree in order to protect it, but it would be possible if the tree met the significant cultural values criteria in Ontario Regulations 10/06 made under the Ontario Heritage Act for defining “provincial significance”.                                                                    NOTE: Protection by a heritage conservation easement agreement is an “in perpetuity” protection of cultural property and this protection can not be revoked except by mutual consent of both parties.

•   Under the Planning Act and Provincial Policy Statement 2005

There are as well significant planning tools also available under the Planning Act and the Provincial Policy Statement 2005 (particularly cultural heritage landscapes under Section 2.6.1) for tree protection.

NOTE: The Trees Ontario Heritage Tree program http://www.treesontario.ca/programs/index.php/heritage_tree_program has no statutory authority to protect trees. This is a web based public recognition and celebratory program.

NOTE: Federally Significant/Heritage Trees can also be protected by designation as a National Historic Site by Parks Canada and Gillies Grove near Arnprior is an example of a nationally significant old growth grove of trees protected in this way.