In keeping with its stated objective of modernization, and taking into account the evolution of the concept of cultural heritage, the legislator has undertaken to reform the law applicable to the protection of cultural heritage by replacing the existing Cultural Property Act (the “CPA ”) with the new Cultural Heritage Act (“CHA”), effective October 19, 2012.
Among the provisions of particular interest to owners of immoveable property, are the following:
The Maintenance Obligation
First, there is the general obligation of maintenance. Whereas the CPA obliged the owner to maintain any classified cultural property or any historic monument “in good condition”, the CHA is much more exacting, in that it requires the owner to “take the necessary measures to preserve the heritage value” of any classified or recognized heritage property.
The Power to Make Orders
Both the Minister and the local heritage council of a municipality may now, among other things, call for any measure that either of them deems necessary to prevent any real or perceived threat of deterioration of a property that may have heritage value, or to reduce the effects of, or eliminate, any such threat. In particular, they can order the closing of a locale, issue a cease-work order or require archeological excavations.
Furthermore, on a declared or classified heritage site, the authorization of the Minister to excavate the soil is now required, even where such excavation takes place inside a building, whereas at least 45 days’ prior notice must be given to a municipality, in the case of excavation inside a building situated on a recognized heritage site. Both the Minister and the municipality have the power to impose conditions in addition to those under the applicable municipal by-laws.
Persons named or designated in an order under the CHA who transgress the order or refuse to comply with it, as well as any person who knowingly contravenes it, is guilty of contempt of court, which may result in the imposition of fines ranging from at least $2,000 up to $100,000 for a natural person and from at least $6,000 up to $200,000 for a legal person, as well as imprisonment for a term not exceeding one year.
For certain other offences against various provisions of the CHA, the fines range from a minimum of $500 to a maximum of $190,000 for a natural person and from $1,500 to $1,140,000 for a legal person.
Each partner or each director of a legal person which authorized or allowed the commission of the offence is deemed to be a party to the offence. In the case of a partner or the director of a legal person who commits an offence under the CHA, the minimum and maximum fines that would apply in the case of a natural person are doubled.
In the case of repeated violations, the minimum and maximum fines mentioned above are doubled for a second offence, and tripled for any subsequent offence.