Bill C-5 reveals fault lines between Ottawa and Indigenous peoples over consultation, consent

Globe and Mail

8 hours ago

Prime Minister Mark Carney's legislation to fast-track projects it deems in the national interest has revealed fault lines between the new Liberal government and Indigenous peoples, particularly around the issues of consultation and consent.
The Assembly of First Nations, Inuit Tapiriit Kanatami and the Manitoba Métis Federation had urged Parliament to take more time on Bill C-5, though the MMF supports it. The concerns are effectively two-fold: how the legislation has been introduced and rushed through Parliament, and that the its contents could infringe on their rights.
On Friday, when the bill was approved by the House of Commons, Mr. Carney announced there will be engagement sessions with Indigenous rights holders this summer, starting with First Nations on July 17. It is widely expected to be approved by the Senate this week.
AFN National Chief Cindy Woodhouse Nepinak said this week the organization and the government are working to jointly develop the agenda and approach, and that the AFN will hold a second virtual forum for chiefs before the session.
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Indigenous Services Minister Mandy Gull-Masty, a former grand chief, said the sessions send an important signal because rights holders will be at the table discussing aspects such as consultation, consent and economic reconciliation.
Both Fort McKay First Nation Chief Raymond Powder and Mohawk Council of Kahnawà:ke Grand Chief Cody Diabo said they intend to participate. Fort McKay First Nation is about 60 kilometres north of Fort McMurray, Alta., while Kahnawà:ke is just south of Montreal.
Speaking before the engagement sessions were announced, Ms. Woodhouse Nepinak said that ideally, the federal government would have worked with Indigenous groups to draft Bill C-5.
'You avoid court challenges later by talking to First Nations right off the bat, rather than try to ram a bill through that you could have co-developed with First Nations people,' she said.
Government officials said in a briefing that they sent letters to 66 Indigenous groups outlining the bill's framework on May 23, and held meetings with 40 others between then and June 6, when it was tabled. The Supreme Court of Canada ruled in 2018 that Parliament does not have to consult on legislation before it is passed.
First Nations in particular have been vocal about their opposition to Bill C-5, with the Chiefs of Ontario holding a protest on Parliament Hill last week. There, speakers warned of actions such as court challenges and protests.
'If you pass this Bill C-5, it will be a long, hot summer,' said Nishnawbe Aski Nation Grand Chief Alvin Fiddler at the protest. 'We will not sit idly by and watch any government, whether it's Ontario or Canada, to come into our territory and take whatever or whenever they wanted, because it is ours.'
Bill C-5 would allow the federal cabinet to put projects on a national-interest list, and then exempt them from various legal requirements to speed up approvals.
In deciding to add a project to the list, the legislation says that the cabinet can use any factor it considers relevant, including five it specifically lists. One of those criteria is 'advance the interests of Indigenous Peoples.'
Before a project can be added to or deleted from the list, the bill says there must be consultation with any Indigenous peoples whose rights are recognized and affirmed under Section 35 of the Constitution and who could be adversely affected. They also need to be consulted on the conditions a project will have to meet.
'This requirement is not optional,' Crown-Indigenous Relations Minister Rebecca Alty told senators last week. 'It is protected under the Canadian Constitution and is embedded throughout the legislation.'
'Projects will only be designated following full consultation with affected Indigenous rights holders,' she said.
There is no definition of consultation within the bill because it can be difficult to have a single one, Ms. Alty said, but the government is committed to meeting its constitutional obligations.
The duty to consult and accommodate is very specific, and has been upheld in a series of Supreme Court decisions. It stems from Section 35 of the Constitution, which recognizes and affirms Aboriginal and treaty rights.
It says that if a government, known as the Crown, is making a decision that will affect Indigenous peoples, it needs to consult with them, says Sharon Singh, who is co-head of McMillan LLP's Indigenous and Environment practices. If the Crown is aware that decision will affect Indigenous peoples' rights, then they must be accommodated, she said, which could include financial compensation or conditions on the decision.
Indigenous peoples and parts of Canada also have title, known as Aboriginal title in the Constitution, said Ms. Singh, where the bar is that consent must be obtained from Indigenous peoples or their governing bodies.
There are exceptions, but the bar is high for them, she said.
Errol Mendes, a law professor at the University of Ottawa, said that the duty to consult depends on how much a project affects an Indigenous group.
'You can't just harvest [their opinion] if there is a critical issue at stake,' he said. 'Does that mean, however, if there are critical issues at stake, that it requires their consent? This is where it gets very potentially controversial' he said, referencing the United Nations Declaration on the Rights of Indigenous Peoples.
While UNDRIP, which came into force in Canada in 2021, talks about the need for free, prior and informed consent, the Supreme Court ruled in March that this does not amount to a veto but a right to a robust process.
Consultation requirements become even more complex when considering Bill C-5 aims to reduce approval timelines, Prof. Mendes added.
Mr. Diabo said he wants consultation to be meaningful, rather than a checked box.
'Consultation is actually engaging, hearing from us, [and] altering either plans or projects that suit our perspectives,' he said, adding that a First Nation should have to consent to see a project move forward.
Overall, he said he wants to see more boundaries in the bill on what can be deemed in the national interest, rather than just relying on what ministers are saying.
Mr. Powder said that robust consultation as defined through constitutional rights is essential, as is true engagement.
That 'means working with First Nations communities as equal partners, starting from the initial stages of the project development and design process, to align on scoping, project location, and economic opportunities including equity,' he said in a statement.
He said he sees the potential for Bill C-5 to create economic opportunity, but wants to ensure rights are protected.
'We want a better life for our First Nations,' he said in an interview. 'We don't want to manage poverty, we want to manage prosperity, and we want to create an opportunity for our people.'